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Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 159618               February 1, 2011

BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA L. MAZA, Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his capacity as Secretary of Foreign Affairs, Respondents.

D E C I S I O N

VELASCO, JR., J.:

The Case

This petition¹ for certiorari, mandamus and prohibition under Rule 65 assails and seeks to nullify the Non-Surrender Agreement concluded by and between the Republic of the Philippines (RP) and the United States of America (USA).

The Facts

Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the period material to this case. Respondent Alberto Romulo was impleaded in his capacity as then Executive Secretary.²

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome Statute³ establishing the International Criminal Court (ICC) with "the power to exercise its jurisdiction over persons for the most serious crimes of international concern x x x and shall be complementary to the national criminal jurisdictions."⁴ The serious crimes adverted to cover those considered grave under international law, such as genocide, crimes against humanity, war crimes, and crimes of aggression.⁵

On December 28, 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the Rome Statute which, by its terms, is "subject to ratification, acceptance or approval" by the signatory states.⁶ As of the filing of the instant petition, only 92 out of the 139 signatory countries appear to have completed the ratification, approval and concurrence process. The Philippines is not among the 92.

RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement (Agreement, hereinafter) between the USA and the RP.

Via Exchange of Notes No. BFO-028-03⁷ dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under the US Embassy Note adverted to and put in effect the Agreement with the US government. In esse, the Agreement aims to protect what it refers to and defines as "persons" of the RP and US from frivolous and harassment suits that might be brought against them in international tribunals.⁸ It is reflective of the increasing pace of the strategic security and defense partnership between the two countries. As of May 2, 2003, similar bilateral agreements have been effected by and between the US and 33 other countries.⁹

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, "persons" are current or former Government officials, employees (including contractors), or military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall not, absent the express consent of the first Party,

(a) be surrendered or transferred by any means to any international tribunal for any purpose, unless such tribunal has been established by the UN Security Council, or

(b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for the purpose of surrender to or transfer to any international tribunal, unless such tribunal has been established by the UN Security Council.

3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a third country, the [US] will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of the Government of the Republic of the Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third country, the [GRP] will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of the Government of the [US].

5. This Agreement shall remain in force until one year after the date on which one party notifies the other of its intent to terminate the Agreement. The provisions of this Agreement shall continue to apply with respect to any act occurring, or any allegation arising, before the effective date of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of diplomatic notes constituted a legally binding agreement under international law; and that, under US law, the said agreement did not require the advice and consent of the US Senate.¹⁰

In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and ratifying the Agreement and prays that it be struck down as unconstitutional, or at least declared as without force and effect.

For their part, respondents question petitioner’s standing to maintain a suit and counter that the Agreement, being in the nature of an executive agreement, does not require Senate concurrence for its efficacy. And for reasons detailed in their comment, respondents assert the constitutionality of the Agreement.

The Issues

I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY ABUSED THEIR DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION FOR CONCLUDING THE RP-US NON SURRENDER AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED 13 MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS ALREADY SIGNED THE ROME STATUTE OF THE [ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY THE PHILIPPINE SENATE.

A. Whether by entering into the x x x Agreement Respondents gravely abused their discretion when they capriciously abandoned, waived and relinquished our only legitimate recourse through the Rome Statute of the [ICC] to prosecute and try "persons" as defined in the x x x Agreement, x x x or literally any conduit of American interests, who have committed crimes of genocide, crimes against humanity, war crimes and the crime of aggression, thereby abdicating Philippine Sovereignty.

B. Whether after the signing and pending ratification of the Rome Statute of the [ICC] the [RP] President and the [DFA] Secretary x x x are obliged by the principle of good faith to refrain from doing all acts which would substantially impair the value of the undertaking as signed.

C. Whether the x x x Agreement constitutes an act which defeats the object and purpose of the Rome Statute of the International Criminal Court and contravenes the obligation of good faith inherent in the signature of the President affixed on the Rome Statute of the International Criminal Court, and if so whether the x x x Agreement is void and unenforceable on this ground.

D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for grave abuse of discretion amounting to lack or excess of jurisdiction in connection with its execution.

II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR CONTRACTING OBLIGATIONS THAT ARE EITHER IMMORAL OR OTHERWISE AT VARIANCE WITH UNIVERSALLY RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW.

III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND EFFECTIVE WITHOUT THE CONCURRENCE BY AT LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE SENATE x x x.¹¹

The foregoing issues may be summarized into two: first, whether or not the Agreement was contracted validly, which resolves itself into the question of whether or not respondents gravely abused their discretion in concluding it; and second, whether or not the Agreement, which has not been submitted to the Senate for concurrence, contravenes and undermines the Rome Statute and other treaties. But because respondents expectedly raised it, we shall first tackle the issue of petitioner’s legal standing.

The Court’s Ruling

This petition is bereft of merit.

Procedural Issue: Locus Standi of Petitioner

Petitioner, through its three party-list representatives, contends that the issue of the validity or invalidity of the Agreement carries with it constitutional significance and is of paramount importance that justifies its standing. Cited in this regard is what is usually referred to as the emergency powers cases,¹² in which ordinary citizens and taxpayers were accorded the personality to question the constitutionality of executive issuances.

Locus standi is "a right of appearance in a court of justice on a given question."¹³ Specifically, it is "a party’s personal and substantial interest in a case where he has sustained or will sustain direct injury as a result"¹⁴ of the act being challenged, and "calls for more than just a generalized grievance."¹⁵ The term "interest" refers to material interest, as distinguished from one that is merely incidental.¹⁶ The rationale for requiring a party who challenges the validity of a law or international agreement to allege such a personal stake in the outcome of the controversy is "to assure the concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."¹⁷

Locus standi, however, is merely a matter of procedure and it has been recognized that, in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act, but by concerned citizens, taxpayers, or voters who actually sue in the public interest.¹⁸ Consequently, in a catena of cases,¹⁹ this Court has invariably adopted a liberal stance on locus standi.

Going by the petition, petitioner’s representatives pursue the instant suit primarily as concerned citizens raising issues of transcendental importance, both for the Republic and the citizenry as a whole.

When suing as a citizen to question the validity of a law or other government action, a petitioner needs to meet certain specific requirements before he can be clothed with standing. Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc.²⁰ expounded on this requirement, thus:

In a long line of cases, however, concerned citizens, taxpayers and legislators when specific requirements have been met have been given standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of. In fine, when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest.²¹

In the case at bar, petitioner’s representatives have complied with the qualifying conditions or specific requirements exacted under the locus standi rule. As citizens, their interest in the subject matter of the petition is direct and personal. At the very least, their assertions questioning the Agreement are made of a public right, i.e., to ascertain that the Agreement did not go against established national policies, practices, and obligations bearing on the State’s obligation to the community of nations.

At any event, the primordial importance to Filipino citizens in general of the issue at hand impels the Court to brush aside the procedural barrier posed by the traditional requirement of locus standi, as we have done in a long line of earlier cases, notably in the old but oft-cited emergency powers cases²² and Kilosbayan v. Guingona, Jr.²³ In cases of transcendental importance, we wrote again in Bayan v. Zamora,²⁴ "The Court may relax the standing requirements and allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review."

Moreover, bearing in mind what the Court said in Tañada v. Angara, "that it will not shirk, digress from or abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or department of the government,"²⁵ we cannot but resolve head on the issues raised before us. Indeed, where an action of any branch of government is seriously alleged to have infringed the Constitution or is done with grave abuse of discretion, it becomes not only the right but in fact the duty of the judiciary to settle it. As in this petition, issues are precisely raised putting to the fore the propriety of the Agreement pending the ratification of the Rome Statute.

Validity of the RP-US Non-Surrender Agreement

Petitioner’s initial challenge against the Agreement relates to form, its threshold posture being that E/N BFO-028-03 cannot be a valid medium for concluding the Agreement.

Petitioners’ contention––perhaps taken unaware of certain well-recognized international doctrines, practices, and jargons––is untenable. One of these is the doctrine of incorporation, as expressed in Section 2, Article II of the Constitution, wherein the Philippines adopts the generally accepted principles of international law and international jurisprudence as part of the law of the land and adheres to the policy of peace, cooperation, and amity with all nations.²⁶ An exchange of notes falls "into the category of inter-governmental agreements,"²⁷ which is an internationally accepted form of international agreement. The United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows:

An "exchange of notes" is a record of a routine agreement, that has many similarities with the private law contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. The signatories of the letters may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of legislative approval.²⁸

In another perspective, the terms "exchange of notes" and "executive agreements" have been used interchangeably, exchange of notes being considered a form of executive agreement that becomes binding through executive action.²⁹ On the other hand, executive agreements concluded by the President "sometimes take the form of exchange of notes and at other times that of more formal documents denominated ‘agreements’ or ‘protocols.’"³⁰ As former US High Commissioner to the Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement Acts:

The point where ordinary correspondence between this and other governments ends and agreements – whether denominated executive agreements or exchange of notes or otherwise – begin, may sometimes be difficult of ready ascertainment.³¹ x x x

It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the Non-Surrender Agreement itself, or as an integral instrument of acceptance thereof or as consent to be bound––is a recognized mode of concluding a legally binding international written contract among nations.

Senate Concurrence Not Required

Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation."³² International agreements may be in the form of (1) treaties that require legislative concurrence after executive ratification; or (2) executive agreements that are similar to treaties, except that they do not require legislative concurrence and are usually less formal and deal with a narrower range of subject matters than treaties.³³

Under international law, there is no difference between treaties and executive agreements in terms of their binding effects on the contracting states concerned,³⁴ as long as the negotiating functionaries have remained within their powers.³⁵ Neither, on the domestic sphere, can one be held valid if it violates the Constitution.³⁶ Authorities are, however, agreed that one is distinct from another for accepted reasons apart from the concurrence-requirement aspect.³⁷ As has been observed by US constitutional scholars, a treaty has greater "dignity" than an executive agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it the authority of the President, the Senate, and the people;³⁸ a ratified treaty, unlike an executive agreement, takes precedence over any prior statutory enactment.³⁹

Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner takes a cue from Commissioner of Customs v. Eastern Sea Trading, in which the Court reproduced the following observations made by US legal scholars: "[I]nternational agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties [while] those embodying adjustments of detail carrying out well established national policies and traditions and those involving arrangements of a more or less temporary nature take the form of executive agreements." ⁴⁰

Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the subject-categories that are enumerated in the Eastern Sea Trading case, and that may be covered by an executive agreement, such as commercial/consular relations, most-favored nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and settlement of claims.

In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales and Merchant,⁴¹ holding that an executive agreement through an exchange of notes cannot be used to amend a treaty.

We are not persuaded.

The categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the propriety of entering, on a given subject, into a treaty or an executive agreement as an instrument of international relations. The primary consideration in the choice of the form of agreement is the parties’ intent and desire to craft an international agreement in the form they so wish to further their respective interests. Verily, the matter of form takes a back seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as the parties in either international agreement each labor under the pacta sunt servanda⁴² principle.

As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern Sea Trading. Since then, the conduct of foreign affairs has become more complex and the domain of international law wider, as to include such subjects as human rights, the environment, and the sea. In fact, in the US alone, the executive agreements executed by its President from 1980 to 2000 covered subjects such as defense, trade, scientific cooperation, aviation, atomic energy, environmental cooperation, peace corps, arms limitation, and nuclear safety, among others.⁴³ Surely, the enumeration in Eastern Sea Trading cannot circumscribe the option of each state on the matter of which the international agreement format would be convenient to serve its best interest. As Francis Sayre said in his work referred to earlier:

x x x It would be useless to undertake to discuss here the large variety of executive agreements as such concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade-agreement act, have been negotiated with foreign governments. x x x They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil air craft, custom matters and commercial relations generally, international claims, postal matters, the registration of trademarks and copyrights, etc. x x x

And lest it be overlooked, one type of executive agreement is a treaty-authorized⁴⁴ or a treaty-implementing executive agreement,⁴⁵ which necessarily would cover the same matters subject of the underlying treaty.

But over and above the foregoing considerations is the fact that––save for the situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution⁴⁶––when a treaty is required, the Constitution does not classify any subject, like that involving political issues, to be in the form of, and ratified as, a treaty. What the Constitution merely prescribes is that treaties need the concurrence of the Senate by a vote defined therein to complete the ratification process.

Petitioner’s reliance on Adolfo⁴⁷ is misplaced, said case being inapplicable owing to different factual milieus. There, the Court held that an executive agreement cannot be used to amend a duly ratified and existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement that does not require the concurrence of the Senate for its ratification may not be used to amend a treaty that, under the Constitution, is the product of the ratifying acts of the Executive and the Senate. The presence of a treaty, purportedly being subject to amendment by an executive agreement, does not obtain under the premises.

Considering the above discussion, the Court need not belabor at length the third main issue raised, referring to the validity and effectivity of the Agreement without the concurrence by at least two-thirds of all the members of the Senate. The Court has, in Eastern Sea Trading,⁴⁸ as reiterated in Bayan,⁴⁹ given recognition to the obligatory effect of executive agreements without the concurrence of the Senate:

x x x [T]he right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history, we have entered executive agreements covering such subjects as commercial and consular relations, most favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts.

The Agreement Not in Contravention of the Rome Statute

It is the petitioner’s next contention that the Agreement undermines the establishment of the ICC and is null and void insofar as it unduly restricts the ICC’s jurisdiction and infringes upon the effectivity of the Rome Statute. Petitioner posits that the Agreement was constituted solely for the purpose of providing individuals or groups of individuals with immunity from the jurisdiction of the ICC; and such grant of immunity through non-surrender agreements allegedly does not legitimately fall within the scope of Art. 98 of the Rome Statute. It concludes that state parties with non-surrender agreements are prevented from meeting their obligations under the Rome Statute, thereby constituting a breach of Arts. 27,⁵⁰ 86,⁵¹ 89⁵² and 90⁵³ thereof.

Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that those responsible for the worst possible crimes are brought to justice in all cases, primarily by states, but as a last resort, by the ICC; thus, any agreement—like the non-surrender agreement—that precludes the ICC from exercising its complementary function of acting when a state is unable to or unwilling to do so, defeats the object and purpose of the Rome Statute.

Petitioner would add that the President and the DFA Secretary, as representatives of a signatory of the Rome Statute, are obliged by the imperatives of good faith to refrain from performing acts that substantially devalue the purpose and object of the Statute, as signed. Adding a nullifying ingredient to the Agreement, according to petitioner, is the fact that it has an immoral purpose or is otherwise at variance with a priorly executed treaty.

Contrary to petitioner’s pretense, the Agreement does not contravene or undermine, nor does it differ from, the Rome Statute. Far from going against each other, one complements the other. As a matter of fact, the principle of complementarity underpins the creation of the ICC. As aptly pointed out by respondents and admitted by petitioners, the jurisdiction of the ICC is to "be complementary to national criminal jurisdictions [of the signatory states]."⁵⁴ Art. 1 of the Rome Statute pertinently provides:

Article 1
The Court

An International Crimininal Court ("the Court") is hereby established. It x x x shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute. (Emphasis ours.)

Significantly, the sixth preambular paragraph of the Rome Statute declares that "it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes." This provision indicates that primary jurisdiction over the so-called international crimes rests, at the first instance, with the state where the crime was committed; secondarily, with the ICC in appropriate situations contemplated under Art. 17, par. 1⁵⁵ of the Rome Statute.

Of particular note is the application of the principle of ne bis in idem⁵⁶ under par. 3 of Art. 20, Rome Statute, which again underscores the primacy of the jurisdiction of a state vis-a-vis that of the ICC. As far as relevant, the provision states that "no person who has been tried by another court for conduct x x x [constituting crimes within its jurisdiction] shall be tried by the [International Criminal] Court with respect to the same conduct x x x."

The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of jurisdictional conflict between the Philippines, as party to the non-surrender agreement, and the ICC; or the idea of the Agreement substantially impairing the value of the RP’s undertaking under the Rome Statute. Ignoring for a while the fact that the RP signed the Rome Statute ahead of the Agreement, it is abundantly clear to us that the Rome Statute expressly recognizes the primary jurisdiction of states, like the RP, over serious crimes committed within their respective borders, the complementary jurisdiction of the ICC coming into play only when the signatory states are unwilling or unable to prosecute.

Given the above consideration, petitioner’s suggestion––that the RP, by entering into the Agreement, violated its duty required by the imperatives of good faith and breached its commitment under the Vienna Convention⁵⁷ to refrain from performing any act tending to impair the value of a treaty, e.g., the Rome Statute––has to be rejected outright. For nothing in the provisions of the Agreement, in relation to the Rome Statute, tends to diminish the efficacy of the Statute, let alone defeats the purpose of the ICC. Lest it be overlooked, the Rome Statute contains a proviso that enjoins the ICC from seeking the surrender of an erring person, should the process require the requested state to perform an act that would violate some international agreement it has entered into. We refer to Art. 98(2) of the Rome Statute, which reads:

Article 98
Cooperation with respect to waiver of immunity
and consent to surrender

x x x x

2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

Moreover, under international law, there is a considerable difference between a State-Party and a signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is only obliged to refrain from acts which would defeat the object and purpose of a treaty;⁵⁸ whereas a State-Party, on the other hand, is legally obliged to follow all the provisions of a treaty in good faith.

In the instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute and not a State-Party for lack of ratification by the Senate. Thus, it is only obliged to refrain from acts which would defeat the object and purpose of the Rome Statute. Any argument obliging the Philippines to follow any provision in the treaty would be premature.

As a result, petitioner’s argument that State-Parties with non-surrender agreements are prevented from meeting their obligations under the Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail. These articles are only legally binding upon State-Parties, not signatories.

Furthermore, a careful reading of said Art. 90 would show that the Agreement is not incompatible with the Rome Statute. Specifically, Art. 90(4) provides that "[i]f the requesting State is a State not Party to this Statute the requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court. x x x" In applying the provision, certain undisputed facts should be pointed out: first, the US is neither a State-Party nor a signatory to the Rome Statute; and second, there is an international agreement between the US and the Philippines regarding extradition or surrender of persons, i.e., the Agreement. Clearly, even assuming that the Philippines is a State-Party, the Rome Statute still recognizes the primacy of international agreements entered into between States, even when one of the States is not a State-Party to the Rome Statute.

Sovereignty Limited by International Agreements

Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by bargaining away the jurisdiction of the ICC to prosecute US nationals, government officials/employees or military personnel who commit serious crimes of international concerns in the Philippines. Formulating petitioner’s argument a bit differently, the RP, by entering into the Agreement, does thereby abdicate its sovereignty, abdication being done by its waiving or abandoning its right to seek recourse through the Rome Statute of the ICC for erring Americans committing international crimes in the country.

We are not persuaded. As it were, the Agreement is but a form of affirmance and confirmance of the Philippines’ national criminal jurisdiction. National criminal jurisdiction being primary, as explained above, it is always the responsibility and within the prerogative of the RP either to prosecute criminal offenses equally covered by the Rome Statute or to accede to the jurisdiction of the ICC. Thus, the Philippines may decide to try "persons" of the US, as the term is understood in the Agreement, under our national criminal justice system. Or it may opt not to exercise its criminal jurisdiction over its erring citizens or over US "persons" committing high crimes in the country and defer to the secondary criminal jurisdiction of the ICC over them. As to "persons" of the US whom the Philippines refuses to prosecute, the country would, in effect, accord discretion to the US to exercise either its national criminal jurisdiction over the "person" concerned or to give its consent to the referral of the matter to the ICC for trial. In the same breath, the US must extend the same privilege to the Philippines with respect to "persons" of the RP committing high crimes within US territorial jurisdiction.

In the context of the Constitution, there can be no serious objection to the Philippines agreeing to undertake the things set forth in the Agreement. Surely, one State can agree to waive jurisdiction—to the extent agreed upon—to subjects of another State due to the recognition of the principle of extraterritorial immunity. What the Court wrote in Nicolas v. Romulo⁵⁹—a case involving the implementation of the criminal jurisdiction provisions of the RP-US Visiting Forces Agreement—is apropos:

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like Heads of State, diplomats and members of the armed forces contingents of a foreign State allowed to enter another State’s territory. x x x

To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the postulate that some of its provisions constitute a virtual abdication of its sovereignty. Almost every time a state enters into an international agreement, it voluntarily sheds off part of its sovereignty. The Constitution, as drafted, did not envision a reclusive Philippines isolated from the rest of the world. It even adheres, as earlier stated, to the policy of cooperation and amity with all nations.⁶⁰

By their nature, treaties and international agreements actually have a limiting effect on the otherwise encompassing and absolute nature of sovereignty. By their voluntary act, nations may decide to surrender or waive some aspects of their state power or agree to limit the exercise of their otherwise exclusive and absolute jurisdiction. The usual underlying consideration in this partial surrender may be the greater benefits derived from a pact or a reciprocal undertaking of one contracting party to grant the same privileges or immunities to the other. On the rationale that the Philippines has adopted the generally accepted principles of international law as part of the law of the land, a portion of sovereignty may be waived without violating the Constitution.⁶¹ Such waiver does not amount to an unconstitutional diminution or deprivation of jurisdiction of Philippine courts.⁶²

Agreement Not Immoral/Not at Variance
with Principles of International Law

Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations and/or being at variance with allegedly universally recognized principles of international law. The immoral aspect proceeds from the fact that the Agreement, as petitioner would put it, "leaves criminals immune from responsibility for unimaginable atrocities that deeply shock the conscience of humanity; x x x it precludes our country from delivering an American criminal to the [ICC] x x x."⁶³

The above argument is a kind of recycling of petitioner’s earlier position, which, as already discussed, contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the process undermined its treaty obligations under the Rome Statute, contrary to international law principles.⁶⁴

The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly described by the Solicitor General, "is an assertion by the Philippines of its desire to try and punish crimes under its national law. x x x The agreement is a recognition of the primacy and competence of the country’s judiciary to try offenses under its national criminal laws and dispense justice fairly and judiciously."

Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos and Americans committing high crimes of international concern to escape criminal trial and punishment. This is manifestly incorrect. Persons who may have committed acts penalized under the Rome Statute can be prosecuted and punished in the Philippines or in the US; or with the consent of the RP or the US, before the ICC, assuming, for the nonce, that all the formalities necessary to bind both countries to the Rome Statute have been met. For perspective, what the Agreement contextually prohibits is the surrender by either party of individuals to international tribunals, like the ICC, without the consent of the other party, which may desire to prosecute the crime under its existing laws. With the view we take of things, there is nothing immoral or violative of international law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered criminal by both Philippine laws and the Rome Statute.

No Grave Abuse of Discretion

Petitioner’s final point revolves around the necessity of the Senate’s concurrence in the Agreement. And without specifically saying so, petitioner would argue that the non-surrender agreement was executed by the President, thru the DFA Secretary, in grave abuse of discretion.

The Court need not delve on and belabor the first portion of the above posture of petitioner, the same having been discussed at length earlier on. As to the second portion, We wish to state that petitioner virtually faults the President for performing, through respondents, a task conferred the President by the Constitution—the power to enter into international agreements.

By constitutional fiat and by the nature of his or her office, the President, as head of state and government, is the sole organ and authority in the external affairs of the country.⁶⁵ The Constitution vests in the President the power to enter into international agreements, subject, in appropriate cases, to the required concurrence votes of the Senate. But as earlier indicated, executive agreements may be validly entered into without such concurrence. As the President wields vast powers and influence, her conduct in the external affairs of the nation is, as Bayan would put it, "executive altogether." The right of the President to enter into or ratify binding executive agreements has been confirmed by long practice.⁶⁶

In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the authority and discretion vested in her by the Constitution. At the end of the day, the President––by ratifying, thru her deputies, the non-surrender agreement––did nothing more than discharge a constitutional duty and exercise a prerogative that pertains to her office.

While the issue of ratification of the Rome Statute is not determinative of the other issues raised herein, it may perhaps be pertinent to remind all and sundry that about the time this petition was interposed, such issue of ratification was laid to rest in Pimentel, Jr. v. Office of the Executive Secretary.⁶⁷ As the Court emphasized in said case, the power to ratify a treaty, the Statute in that instance, rests with the President, subject to the concurrence of the Senate, whose role relative to the ratification of a treaty is limited merely to concurring in or withholding the ratification. And concomitant with this treaty-making power of the President is his or her prerogative to refuse to submit a treaty to the Senate; or having secured the latter’s consent to the ratification of the treaty, refuse to ratify it.⁶⁸ This prerogative, the Court hastened to add, is the President’s alone and cannot be encroached upon via a writ of mandamus. Barring intervening events, then, the Philippines remains to be just a signatory to the Rome Statute. Under Art. 125⁶⁹ thereof, the final acts required to complete the treaty process and, thus, bring it into force, insofar as the Philippines is concerned, have yet to be done.

Agreement Need Not Be in the Form of a Treaty

On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851, otherwise known as the "Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity." Sec. 17 of RA 9851, particularly the second paragraph thereof, provides:

Section 17. Jurisdiction. – x x x x

In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties. (Emphasis supplied.)

A view is advanced that the Agreement amends existing municipal laws on the State’s obligation in relation to grave crimes against the law of nations, i.e., genocide, crimes against humanity and war crimes. Relying on the above-quoted statutory proviso, the view posits that the Philippine is required to surrender to the proper international tribunal those persons accused of the grave crimes defined under RA 9851, if it does not exercise its primary jurisdiction to prosecute them.

The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national for violations of RA 9851, the Philippines has only two options, to wit: (1) surrender the accused to the proper international tribunal; or (2) surrender the accused to another State if such surrender is "pursuant to the applicable extradition laws and treaties." But the Philippines may exercise these options only in cases where "another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime;" otherwise, the Philippines must prosecute the crime before its own courts pursuant to RA 9851.

Posing the situation of a US national under prosecution by an international tribunal for any crime under RA 9851, the Philippines has the option to surrender such US national to the international tribunal if it decides not to prosecute such US national here. The view asserts that this option of the Philippines under Sec. 17 of RA 9851 is not subject to the consent of the US, and any derogation of Sec. 17 of RA 9851, such as requiring the consent of the US before the Philippines can exercise such option, requires an amendatory law. In line with this scenario, the view strongly argues that the Agreement prevents the Philippines—without the consent of the US—from surrendering to any international tribunal US nationals accused of crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851. Consequently, the view is strongly impressed that the Agreement cannot be embodied in a simple executive agreement in the form of an exchange of notes but must be implemented through an extradition law or a treaty with the corresponding formalities.

Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where the Philippines adopts, as a national policy, the "generally accepted principles of international law as part of the law of the land," the Court is further impressed to perceive the Rome Statute as declaratory of customary international law. In other words, the Statute embodies principles of law which constitute customary international law or custom and for which reason it assumes the status of an enforceable domestic law in the context of the aforecited constitutional provision. As a corollary, it is argued that any derogation from the Rome Statute principles cannot be undertaken via a mere executive agreement, which, as an exclusive act of the executive branch, can only implement, but cannot amend or repeal, an existing law. The Agreement, so the argument goes, seeks to frustrate the objects of the principles of law or alters customary rules embodied in the Rome Statute.

Prescinding from the foregoing premises, the view thus advanced considers the Agreement inefficacious, unless it is embodied in a treaty duly ratified with the concurrence of the Senate, the theory being that a Senate- ratified treaty partakes of the nature of a municipal law that can amend or supersede another law, in this instance Sec. 17 of RA 9851 and the status of the Rome Statute as constitutive of enforceable domestic law under Sec. 2, Art. II of the Constitution.

We are unable to lend cogency to the view thus taken. For one, we find that the Agreement does not amend or is repugnant to RA 9851. For another, the view does not clearly state what precise principles of law, if any, the Agreement alters. And for a third, it does not demonstrate in the concrete how the Agreement seeks to frustrate the objectives of the principles of law subsumed in the Rome Statute.

Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the former merely reinforces the primacy of the national jurisdiction of the US and the Philippines in prosecuting criminal offenses committed by their respective citizens and military personnel, among others. The jurisdiction of the ICC pursuant to the Rome Statute over high crimes indicated thereat is clearly and unmistakably complementary to the national criminal jurisdiction of the signatory states.

Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international humanitarian law, genocide and other crimes against humanity;⁷⁰ (2) provides penal sanctions and criminal liability for their commission;⁷¹ and (3) establishes special courts for the prosecution of these crimes and for the State to exercise primary criminal jurisdiction.⁷² Nowhere in RA 9851 is there a proviso that goes against the tenor of the Agreement.

The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the Philippine State to surrender to the proper international tribunal those persons accused of crimes sanctioned under said law if it does not exercise its primary jurisdiction to prosecute such persons. This view is not entirely correct, for the above quoted proviso clearly provides discretion to the Philippine State on whether to surrender or not a person accused of the crimes under RA 9851. The statutory proviso uses the word "may." It is settled doctrine in statutory construction that the word "may" denotes discretion, and cannot be construed as having mandatory effect.⁷³ Thus, the pertinent second pararagraph of Sec. 17, RA 9851 is simply permissive on the part of the Philippine State.1avvphi1

Besides, even granting that the surrender of a person is mandatorily required when the Philippines does not exercise its primary jurisdiction in cases where "another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime," still, the tenor of the Agreement is not repugnant to Sec. 17 of RA 9851. Said legal proviso aptly provides that the surrender may be made "to another State pursuant to the applicable extradition laws and treaties." The Agreement can already be considered a treaty following this Court’s decision in Nicolas v. Romulo⁷⁴ which cited Weinberger v. Rossi.⁷⁵ In Nicolas, We held that "an executive agreement is a ‘treaty’ within the meaning of that word in international law and constitutes enforceable domestic law vis-à-vis the United States."⁷⁶

Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US Extradition Treaty, which was executed on November 13, 1994. The pertinent Philippine law, on the other hand, is Presidential Decree No. 1069, issued on January 13, 1977. Thus, the Agreement, in conjunction with the RP-US Extradition Treaty, would neither violate nor run counter to Sec. 17 of RA 9851.

The view’s reliance on Suplico v. Neda⁷⁷ is similarly improper. In that case, several petitions were filed questioning the power of the President to enter into foreign loan agreements. However, before the petitions could be resolved by the Court, the Office of the Solicitor General filed a Manifestation and Motion averring that the Philippine Government decided not to continue with the ZTE National Broadband Network Project, thus rendering the petition moot. In resolving the case, the Court took judicial notice of the act of the executive department of the Philippines (the President) and found the petition to be indeed moot. Accordingly, it dismissed the petitions.

In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of an executive agreement. He stated that "an executive agreement has the force and effect of law x x x [it] cannot amend or repeal prior laws."⁷⁸ Hence, this argument finds no application in this case seeing as RA 9851 is a subsequent law, not a prior one. Notably, this argument cannot be found in the ratio decidendi of the case, but only in the dissenting opinion.

The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, "[a]n offense shall be an extraditable offense if it is punishable under the laws in both Contracting Parties x x x,"⁷⁹ and thereby concluding that while the Philippines has criminalized under RA 9851 the acts defined in the Rome Statute as war crimes, genocide and other crimes against humanity, there is no similar legislation in the US. It is further argued that, citing U.S. v. Coolidge, in the US, a person cannot be tried in the federal courts for an international crime unless Congress adopts a law defining and punishing the offense.

This view must fail.

On the contrary, the US has already enacted legislation punishing the high crimes mentioned earlier. In fact, as early as October 2006, the US enacted a law criminalizing war crimes. Section 2441, Chapter 118, Part I, Title 18 of the United States Code Annotated (USCA) provides for the criminal offense of "war crimes" which is similar to the war crimes found in both the Rome Statute and RA 9851, thus:

(a) Offense – Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b) Circumstances – The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in Section 101 of the Immigration and Nationality Act).

(c) Definition – As used in this Section the term "war crime" means any conduct –

(1) Defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3) Which constitutes a grave breach of common Article 3 (as defined in subsection [d]) when committed in the context of and in association with an armed conflict not of an international character; or

(4) Of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.⁸⁰1avvphi1

Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:

§1091. Genocide

(a) Basic Offense – Whoever, whether in the time of peace or in time of war and with specific intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as such–

(1) kills members of that group;

(2) causes serious bodily injury to members of that group;

(3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;

(4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part;

(5) imposes measures intended to prevent births within the group; or

(6) transfers by force children of the group to another group;

shall be punished as provided in subsection (b).⁸¹

Arguing further, another view has been advanced that the current US laws do not cover every crime listed within the jurisdiction of the ICC and that there is a gap between the definitions of the different crimes under the US laws versus the Rome Statute. The view used a report written by Victoria K. Holt and Elisabeth W. Dallas, entitled "On Trial: The US Military and the International Criminal Court," as its basis.

At the outset, it should be pointed out that the report used may not have any weight or value under international law. Article 38 of the Statute of the International Court of Justice (ICJ) lists the sources of international law, as follows: (1) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (2) international custom, as evidence of a general practice accepted as law; (3) the general principles of law recognized by civilized nations; and (4) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. The report does not fall under any of the foregoing enumerated sources. It cannot even be considered as the "teachings of highly qualified publicists." A highly qualified publicist is a scholar of public international law and the term usually refers to legal scholars or "academic writers."⁸² It has not been shown that the authors⁸³ of this report are highly qualified publicists.

Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of the crimes are nonexistent. To highlight, the table below shows the definitions of genocide and war crimes under the Rome Statute vis-à-vis the definitions under US laws:

Rome Statute	US Law
Article 6 Genocide For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.	§1091. Genocide (a) Basic Offense – Whoever, whether in the time of peace or in time of war and with specific intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as such– (1) kills members of that group; (2) causes serious bodily injury to members of that group; (3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques; (4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part; (5) imposes measures intended to prevent births within the group; or (6) transfers by force children of the group to another group; shall be punished as provided in subsection (b).
Article 8 War Crimes 2. For the purpose of this Statute, "war crimes" means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: x x x84 (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: x x x x (c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: x x x x (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: x x x.	(d) Definition – As used in this Section the term "war crime" means any conduct – (1) Defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party; (2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907; (3) Which constitutes a grave breach of common Article 3 (as defined in subsection [d]85) when committed in the context of and in association with an armed conflict not of an international character; or (4) Of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.86

Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the report itself stated as much, to wit:

Few believed there were wide differences between the crimes under the jurisdiction of the Court and crimes within the Uniform Code of Military Justice that would expose US personnel to the Court. Since US military lawyers were instrumental in drafting the elements of crimes outlined in the Rome Statute, they ensured that most of the crimes were consistent with those outlined in the UCMJ and gave strength to complementarity for the US. Small areas of potential gaps between the UCMJ and the Rome Statute, military experts argued, could be addressed through existing military laws.⁸⁷ x x x

The report went on further to say that "[a]ccording to those involved, the elements of crimes laid out in the Rome Statute have been part of US military doctrine for decades."⁸⁸ Thus, the argument proffered cannot stand.

Nonetheless, despite the lack of actual domestic legislation, the US notably follows the doctrine of incorporation. As early as 1900, the esteemed Justice Gray in The Paquete Habana⁸⁹ case already held international law as part of the law of the US, to wit:

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for the trustworthy evidence of what the law really is.⁹⁰ (Emphasis supplied.)

Thus, a person can be tried in the US for an international crime despite the lack of domestic legislation. The cited ruling in U.S. v. Coolidge,⁹¹ which in turn is based on the holding in U.S. v. Hudson,⁹² only applies to common law and not to the law of nations or international law.⁹³ Indeed, the Court in U.S. v. Hudson only considered the question, "whether the Circuit Courts of the United States can exercise a common law jurisdiction in criminal cases."⁹⁴ Stated otherwise, there is no common law crime in the US but this is considerably different from international law.

The US doubtless recognizes international law as part of the law of the land, necessarily including international crimes, even without any local statute.⁹⁵ In fact, years later, US courts would apply international law as a source of criminal liability despite the lack of a local statute criminalizing it as such. So it was that in Ex Parte Quirin⁹⁶ the US Supreme Court noted that "[f]rom the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals."⁹⁷ It went on further to explain that Congress had not undertaken the task of codifying the specific offenses covered in the law of war, thus:

It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to codify that branch of international law or to mark its precise boundaries, or to enumerate or define by statute all the acts which that law condemns. An Act of Congress punishing ‘the crime of piracy as defined by the law of nations is an appropriate exercise of its constitutional authority, Art. I, s 8, cl. 10, ‘to define and punish’ the offense since it has adopted by reference the sufficiently precise definition of international law. x x x Similarly by the reference in the 15th Article of War to ‘offenders or offenses that x x x by the law of war may be triable by such military commissions. Congress has incorporated by reference, as within the jurisdiction of military commissions, all offenses which are defined as such by the law of war x x x, and which may constitutionally be included within that jurisdiction.⁹⁸ x x x (Emphasis supplied.)

This rule finds an even stronger hold in the case of crimes against humanity. It has been held that genocide, war crimes and crimes against humanity have attained the status of customary international law. Some even go so far as to state that these crimes have attained the status of jus cogens.⁹⁹

Customary international law or international custom is a source of international law as stated in the Statute of the ICJ.¹⁰⁰ It is defined as the "general and consistent practice of states recognized and followed by them from a sense of legal obligation."¹⁰¹ In order to establish the customary status of a particular norm, two elements must concur: State practice, the objective element; and opinio juris sive necessitates, the subjective element.¹⁰²

State practice refers to the continuous repetition of the same or similar kind of acts or norms by States.¹⁰³ It is demonstrated upon the existence of the following elements: (1) generality; (2) uniformity and consistency; and (3) duration.¹⁰⁴ While, opinio juris, the psychological element, requires that the state practice or norm "be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it."¹⁰⁵

"The term ‘jus cogens’ means the ‘compelling law.’"¹⁰⁶ Corollary, "a jus cogens norm holds the highest hierarchical position among all other customary norms and principles."¹⁰⁷ As a result, jus cogens norms are deemed "peremptory and non-derogable."¹⁰⁸ When applied to international crimes, "jus cogens crimes have been deemed so fundamental to the existence of a just international legal order that states cannot derogate from them, even by agreement."¹⁰⁹

These jus cogens crimes relate to the principle of universal jurisdiction, i.e., "any state may exercise jurisdiction over an individual who commits certain heinous and widely condemned offenses, even when no other recognized basis for jurisdiction exists."¹¹⁰ "The rationale behind this principle is that the crime committed is so egregious that it is considered to be committed against all members of the international community"¹¹¹ and thus granting every State jurisdiction over the crime.¹¹²

Therefore, even with the current lack of domestic legislation on the part of the US, it still has both the doctrine of incorporation and universal jurisdiction to try these crimes.

Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the Rome Statute is not declaratory of customary international law.

The first element of customary international law, i.e., "established, widespread, and consistent practice on the part of States,"¹¹³ does not, under the premises, appear to be obtaining as reflected in this simple reality: As of October 12, 2010, only 114¹¹⁴ States have ratified the Rome Statute, subsequent to its coming into force eight (8) years earlier, or on July 1, 2002. The fact that 114 States out of a total of 194¹¹⁵ countries in the world, or roughly 58.76%, have ratified the Rome Statute casts doubt on whether or not the perceived principles contained in the Statute have attained the status of customary law and should be deemed as obligatory international law. The numbers even tend to argue against the urgency of establishing international criminal courts envisioned in the Rome Statute. Lest it be overlooked, the Philippines, judging by the action or inaction of its top officials, does not even feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8) years have elapsed since the Philippine representative signed the Statute, but the treaty has not been transmitted to the Senate for the ratification process.

And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the concurring elements, thus:

Custom or customary international law means "a general and consistent practice of states followed by them from a sense of legal obligation [opinio juris] x x x." This statement contains the two basic elements of custom: the material factor, that is how the states behave, and the psychological factor or subjective factor, that is, why they behave the way they do.

x x x x

The initial factor for determining the existence of custom is the actual behavior of states. This includes several elements: duration, consistency, and generality of the practice of states.

The required duration can be either short or long. x x x

x x x x

Duration therefore is not the most important element. More important is the consistency and the generality of the practice. x x x

x x x x

Once the existence of state practice has been established, it becomes necessary to determine why states behave the way they do. Do states behave the way they do because they consider it obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes practice an international rule. Without it, practice is not law.¹¹⁶ (Emphasis added.)

Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the different countries in the world that the prosecution of internationally recognized crimes of genocide, etc. should be handled by a particular international criminal court.

Absent the widespread/consistent-practice-of-states factor, the second or the psychological element must be deemed non-existent, for an inquiry on why states behave the way they do presupposes, in the first place, that they are actually behaving, as a matter of settled and consistent practice, in a certain manner. This implicitly requires belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.¹¹⁷ Like the first element, the second element has likewise not been shown to be present.

Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes enumerated therein as evidenced by it requiring State consent.¹¹⁸ Even further, the Rome Statute specifically and unequivocally requires that: "This Statute is subject to ratification, acceptance or approval by signatory States."¹¹⁹ These clearly negate the argument that such has already attained customary status.

More importantly, an act of the executive branch with a foreign government must be afforded great respect. The power to enter into executive agreements has long been recognized to be lodged with the President. As We held in Neri v. Senate Committee on Accountability of Public Officers and Investigations, "[t]he power to enter into an executive agreement is in essence an executive power. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence."¹²⁰ The rationale behind this principle is the inviolable doctrine of separation of powers among the legislative, executive and judicial branches of the government. Thus, absent any clear contravention of the law, courts should exercise utmost caution in declaring any executive agreement invalid.

In light of the above consideration, the position or view that the challenged RP-US Non-Surrender Agreement ought to be in the form of a treaty, to be effective, has to be rejected.

WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack of merit. No costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.
Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

ANTONIO T. CARPIO Associate Justice	CONCHITA CARPIO MORALES Associate Justice
ANTONIO EDUARDO B. NACHURA Associate Justice	TERESITA J. LEONARDO-DE CASTRO Associate Justice
ARTURO D. BRION Associate Justice	DIOSDADO M. PERALTA Associate Justice
LUCAS P. BERSAMIN Associate Justice	MARIANO C. DEL CASTILLO Associate Justice
ROBERTO A. ABAD Associate Justice	MARTIN S. VILLARAMA, JR. Associate Justice
JOSE PORTUGAL PEREZ Associate Justice	JOSE CATRAL MENDOZA Associate Justice

MARIA LOURDES P. A. SERENO
Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice

Footnotes

¹ Rollo, pp. 241-265.

² He is now the DFA Secretary.

³ Rollo, pp. 74-145.

⁴ Rome Statute, Art. 1.

⁵ Id., Art. 5.

⁶ ROME STATUTE, Article 125.

⁷ Rollo, pp. 68-69.

⁸ Id. at 72, Paper on the RP-US Non-Surrender Agreement.

⁹ Id. at 70.

¹⁰ Id. at 175.

¹¹ Id. at 25-27.

¹² Philconsa v. Gimenez, No. L-23326, December 18, 1965, 15 SCRA 479; Iloilo Palay & Corn Planters Association, No. L-24022, March 3, 1965, 13 SCRA 377; Araneta v. Dinglasan, 84 Phil. 368 (1949).

¹³ David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.

¹⁴ Jumamil v. Café, G.R. No. 144570, September 21, 2005, 470 SCRA 475; citing Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000, 338 SCRA 81.

¹⁵ Id.

¹⁶ Id.

¹⁷ Fariñas v. Executive Secretary, G.R. Nos. 147387 & 152161, December 10, 2003, 417 SCRA 503; citing Baker v. Carr, 369 U.S. 186 (1962). See also Gonzales v. Narvasa, G.R. No. 140835, August 14, 2000, 337 SCRA 733.

¹⁸ Agan, Jr. v. Philippine International Air Terminals Co., Inc., G.R. Nos. 155001, 155547 & 155661, May 5, 2003, 402 SCRA 612.

¹⁹ Constantino, Jr. v. Cuisia, G.R. No. 106064, October 13, 2005, 472 SCRA 515; Agan, Jr., supra note 18; Del Mar v. Philippine Amusement and Gaming Corporation, G.R. No. 138298, November 29, 2000, 346 SCRA 485; Tatad v. Garcia, G.R. No. 114222, April 6, 1995, 243 SCRA 436; Kilosbayan v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110.

²⁰ G.R. No. 160261, November 10, 2003, 415 SCRA 45.

²¹ Id. at 136-137.

²² Supra note 12.

²³ Supra note 19.

²⁴ G.R. No. 138587, October 10, 2000, 342 SCRA 2000.

²⁵ G.R. No. 118295, May 2, 1997, 272 SCRA 18, 48-49.

²⁶ Cruz, Philippine Political Law 55 (1995).

²⁷ Harris, Cases and Materials on International Law 801 (2004).

²⁸ Official Website of the UN <http://untreaty.un.org/English/guide.asp.>; cited in Abaya v. Ebdane, G.R. No. 167919, February 14, 2007, 515 SCRA 720.

²⁹ Abaya v. Ebdane, supra.

³⁰ Id.; citing The Constitutionality of Trade Agreement Acts by Francis Sayre.

³¹ Cited in Commissioner of Customs v. Eastern Sea Trading, 113 Phil. 333 (1961).

³² Executive Order No. 459, dated November 25, 1997, contains a similar definition.

³³ B.A. Boczek, International Law: A Dictionary 346 (2005).

³⁴ Bayan v. Zamora, supra note 24; citing Richard Erickson, "The Making of Executive Agreements by the US Department of Defense," 13 Boston U. Intl. L. J. 58 (1955); Randall, The Treaty Power, 51 Ohio St. L.J., p. 4; see also Restatement (Third) of Foreign Relations Law § 301 (1987), which states that "[t]he terminology used for international agreements is varied. Among the terms used are: treaty, convention, agreement, protocol, covenant, charter, statute, act, declaration, concordat, exchange of notes, agreed minute, memorandum of agreement, memorandum of understanding, and modus vivendi. Whatever their designation, all agreements have the same legal status, except as their provisions or the circumstances of their conclusion indicate otherwise." (Emphasis supplied.)

³⁵ Id. at 489; citing 5 Hackworth, Digest of International Law 395; cited in USAFE Veterans Association Inc. v. Treasurer of the Philippines, 105 Phil. 1030, 1037 (1959).

³⁶ Reid v. Covert, 354 U.S. 77 S. Ct.1230.

³⁷ In the US constitutional system, it is the legal force of treaties and executive agreements on the domestic plane.

³⁸ Henkin, Foreign Affairs and the United States Constitution 224 (2nd ed., 1996).

³⁹ Prof. Edwin Borchard, Treaties and Executive Agreements – Reply, Yale Law Journal, June 1945; cited in Justice Antonio T. Carpio’s Dissent in Nicolas v. Romulo, G.R. Nos. 175888, 176051 & 176222, February 11, 2009, 578 SCRA 438.

⁴⁰ No. L-14279, October 31, 1961, 3 SCRA 351, 356.

⁴¹ No. L-30650, July 31, 1970, 34 SCRA 166.

⁴² Latin for "agreements must be kept," Black’s Law Dictionary (8th ed., 2004). The principle of pacta sunt servanda, in its most common sense, refers to private contracts, stressing that these pacts and clauses are the law between the parties, and implying that the non-fulfilment of respective obligations is a breach of the pact.

With regard to international agreements, Art. 26 of the Vienna Convention on the Law of Treaties (signed on May 23, 1969 and entered into force on January 27, 1980) states that "every treaty in force is binding upon the parties to it and must be performed by them in good faith." Pacta sunt servanda is based on good faith. This entitles states to require that obligations be respected and to rely upon the obligations being respected. This good-faith basis of treaties implies that a party to the treaty cannot invoke provisions of its domestic law as justification for a failure to perform. The only limit to pacta sunt servanda is jus cogens (Latin for "compelling law"), the peremptory norm of general international law.

⁴³ Oona A. Hathaway, Presidential Power Over International Law: Restoring the Balance, 119 YLJ 140, 152 (2009).

⁴⁴ Rotunda, Nowak and Young, Treatise on Constitutional Law 394; cited in then Chief Justice Puno’s dissent in Bayan v. Zamora, supra.

⁴⁵ Nicolas, supra note 39.

⁴⁶ Sec. 25. After the expiration in 1991 of the [RP-US Military Bases Agreement] foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate, and when Congress so requires, ratified x x x in a national referendum held for that purpose, and recognized as a treaty by the contracting state.

⁴⁷ Supra note 39.

⁴⁸ Supra note 41.

⁴⁹ Supra note 31.

⁵⁰ Article 27 Irrelevance of official capacity

⁵¹. This Statue shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

[51] Article 86
General Obligation to Cooperate

States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.

⁵² Article 89

Surrender of persons to the Court

1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.

2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle of neb is in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility.

3. (a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender.

(b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall contain:

(i) A description of the person being transported;

(ii) A brief statement of the facts of the case and their legal characterization; and

(iii) The warrant for arrest and surrender;

(c) A person being transported shall be detained in custody during the period of transit;

(d) No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State;

(e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within that time.

4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.

⁵³ Article 90 Competing requests

1. A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it also receives a request from any other State for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person’s surrender, notify the Court and the requesting State of that fact.

2. Where the requesting State is a State Party, the requested State shall give priority to the request from the Court if:

(a) The Court has, pursuant to article 18 or 19, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or

(b) The Court makes the determination described in subparagraph (a) pursuant to the requested State’s notification under paragraph 1.

3. Where a determination under paragraph 2 (a) has not been made, the requested State may, at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal with the request for extradition from the requesting State but shall not extradite the person until the Court has determined that the case is inadmissible. The Court’s determination shall be made on an expedited basis.

4. If the requesting State is a State not Party to this Statute the requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court, if the Court has determined that the case is inadmissible.

5. Where a case under paragraph 4 has not been determined to be admissible by the Court, the requested State may, at its discretion, proceed to deal with the request for extradition from the requesting State.

6. In cases where paragraph 4 applies except that the requested State is under an existing international obligation to extradite the person to the requesting State not Party to this Statute, the requested State shall determine whether to surrender the person to the Court or extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to:

(a) The respective dates of the requests;

(b) The interests of the requesting State including, where relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and

(c) The possibility of subsequent surrender between the Court and the requesting State.

7. Where a State Party which receives a request from the Court for the surrender of a person also receives a request from any State for the extradition of the same person for conduct other than that which constitutes the crime for which the Court seeks the person’s surrender:

(a) The requested State shall, if it is not under an existing international obligation to extradite the person to the requesting State, give priority to the request from the Court;

(b) The requested State shall, if it is under an existing international obligation to extradite the person to the requesting State, determine whether to surrender the person to the Court or to extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall give special consideration to the relative nature and gravity of the conduct in question.

8. Where pursuant to a notification under this article, the Court has determined a case to be inadmissible, and subsequently extradition to the requesting State is refused, the requested State shall notify the Court of this decision.

⁵⁴ Tenth preambular paragraph of the ICC Statute.

⁵⁵ 1. Having regard to paragraph 10 of the Preamble and Article 1, the Court shall determine that a case is inadmissible where:

(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

(d) The case is not of sufficient gravity to justify further action by the Court.

⁵⁶ Latin for "not twice for the same," a legal principle that means no legal action can be instituted twice for the same cause of action. In gist, it is a legal concept substantially the same as or synonymous to double jeopardy.

⁵⁷ A state is obliged to refrain from acts that would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

⁵⁸ Vienna Convention on the Law of Treaties, Art. 18.

⁵⁹ Supra note 39.

⁶⁰ Constitution, Art. II, Sec. 2.

⁶¹ Tañada v. Angara, G.R. No. 118295, May 2, 1997, 272 SCRA 18.

⁶² Dizon v. Phil. Ryubus Command, 81 Phil. 286 (1948); cited in Agpalo, Public International Law 222-223 (2006).

⁶³ Rollo, pp. 53-54.

⁶⁴ Under Vienna Convention on the Law of Treaties, Art. 18, a State has the obligations not to defeat the object and purpose of a treaty prior to its entry into force when (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

⁶⁵ Bayan v. Zamora, supra.

⁶⁶ Id.; citing Commissioner of Customs, supra.

⁶⁷ G.R. No. 158088, July 6, 2005, 462 SCRA 622.

⁶⁸ Id. at 637-638; citing Cruz, International Law 174 (1998).

⁶⁹ Signature, ratification, acceptance, approval or accession.

1. This Statute shall be open for signature by all States in Rome, at the headquarters of the Food and Agriculture Organization of the United Nations, on 17 July 1998. Thereafter, it shall remain open for signature in Rome at the Ministry of Foreign Affairs of Italy until 17 October 1998. After that date, the Statute shall remain open for signature in New York, at United Nations Headquarters, until 31 December 2000.

2. This Statute is subject to ratification, acceptance or approval by signatory States. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations.

3. This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations.

⁷⁰ RA 9851, Secs. 4-6.

⁷¹ Id., Secs. 7-12.

⁷² Id., Secs. 17-18.

⁷³ Republic Planters Bank v. Agana, Sr., G.R. No. 51765, May 3, 1997, 269 SCRA 1, 12.

⁷⁴ Supra note 39.

⁷⁵ 456 U.S. 25 (1982).

⁷⁶ Nicolas v. Romulo, G.R. Nos. 175888, 176051 & 176222, February 11, 2009, 578 SCRA 438, 467.

⁷⁷ G.R. No. 178830, July 14, 2008, 558 SCRA 329.

⁷⁸ Id. at 376. (Emphasis supplied.)

⁷⁹ Par. 1, Art. 2, RP-US Extradition Treaty, Senate Resolution No. 11, November 27, 1995 (emphasis supplied).

⁸⁰ 18 U.S.C.A. § 2441.

⁸¹ 18 U.S.C.A. § 1091.

⁸² Malcolm Shaw, International Law 112 (2008).

⁸³ Victoria K. Holt and Elisabeth W. Dallas, "On Trial: The US Military and the International Criminal Court," The Henry L. Stimson Center, Report No. 55, March 2006, p. 92; available at <http://www.stimson.org/images/uploads/research-pdfs/US_Military_and_the_ICC_FINAL_website.pdf> last visited January 27, 2011. We quote Holt and Dallas’ profiles from the report:

Victoria K. Holt is a senior associate at the Henry L. Stimson Center, where she co-directs the Future of Peace Operations program. She has co-authored a study of peacekeeping reforms at the United Nations, analyzing the implementation of the 2000 Brahimi Report recommendations, and recently completed reports on African capacity for peace operations and the protection of civilians by military forces. Ms. Holt joined the Stimson Center in 2001, bringing policy and political expertise on UN and peacekeeping issues from her work at the US Department of State, in the NGO community and on Capitol Hill. She served as Senior Policy Advisor at the US State Department (Legislative Affairs), where she worked with Congress on issues involving UN peacekeeping and international organizations. Prior to joining State, she was Executive Director of the Emergency Coalition for US Financial Support of the United Nations, and also directed the Project on Peacekeeping and the UN at the Center for Arms Control and Nonproliferation in Washington, DC. From 1987 to 1994, Ms. Holt worked as a senior Congressional staffer, focusing on defense and foreign policy issues for the House Armed Services Committee. She served as Legislative Director for Rep. Thomas H. Andrews and as Senior Legislative Assistant to Rep. George J. Hochbrueckner. Ms. Holt is a graduate of the Naval War College and holds a B.A. with honors from Wesleyan University.

Elisabeth W. Dallas is a research associate with the Henry L. Stimson Center’s Future of Peace Operations program and is focusing her work on the restoration of the rule of law in post-conflict settings. In particular, she is analyzing what legal mechanisms are required to allow for international criminal jurisdiction within UN peace operations. Prior to working at the Stimson Center, Ms. Dallas was a Senior Fellow with the Public International Law & Policy Group in Washington, DC, where she served as a political and legal advisor for parties during international peace negotiations taking place in the Middle East, the Balkans and South Asia. Ms. Dallas earned an MA from Tufts University’s Fletcher School of Law & Diplomacy with a concentration in International Negotiation & Conflict Resolution and Public International Law, as well as a Certificate in Human Security and Rule of Law. She earned her BA from Haverford College. (Emphasis supplied.)

⁸⁴ ( i) Wilful killing;

(ii) Torture or inhuman treatment, including biological experiments;

(iii) Wilfully causing great suffering, or serious injury to body or health;

(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(vii) Unlawful deportation or transfer or unlawful confinement;

(viii) Taking of hostages.

⁸⁵ (d) Common Article 3 violations. –

(1) Prohibited conduct – In subsection (c)(3), the term "grave breach of common Article 3" means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:

(A) Torture. – The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.

(B) Cruel or inhuman treatment. – The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanction), including serious physical abuse, upon another within his custody or control.

(C) Performing biological experiments. – The act of a person who subjects, or conspires or attempts to subject, one or more person within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons.

(D) Murder. – The act of a person who intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.

(E) Mutilation or maiming.— The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose.

(F) Intentionally causing serious bodily injury.— The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war.

(G) Rape.— The act of a person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object.

(H) Sexual assault or abuse.— The act of a person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact.

(I) Taking hostages.— The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons.

(2) Definitions.— In the case of an offense under subsection (a) by reason of subsection (c)(3)—

(A) the term "severe mental pain or suffering" shall be applied for purposes of paragraphs (1)(A) and (1)(B) in accordance with the meaning given that term in section 2340 (2) of this title;

(B) the term "serious bodily injury" shall be applied for purposes of paragraph (1)(F) in accordance with the meaning given that term in section 113 (b)(2) of this title;

(C) the term "sexual contact" shall be applied for purposes of paragraph (1)(G) in accordance with the meaning given that term in section 2246 (3) of this title;

(D) the term "serious physical pain or suffering" shall be applied for purposes of paragraph (1)(B) as meaning bodily injury that involves—

(i) a substantial risk of death;

(ii) extreme physical pain;

(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or

(iv) a significant loss or impairment of the function of a bodily member, organ, or mental faculty; and

(E) the term "serious mental pain or suffering" shall be applied for purposes of paragraph (1)(B) in accordance with the meaning given the term "severe mental pain or suffering" (as defined in section 2340(2) of this title), except that —

(i) the term "serious shall replace the term "sever" where it appears; and

(ii) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term "serious and non-transitory mental harm (which need not be prolonged)" shall replace the term "prolonged mental harm" where it appears.

(3) Inapplicability of certain provisions with respect to collateral damage or incident of lawful attack.— The intent specified for the conduct stated in subparagraphs (D), (E), and (F) or paragraph (1) precludes the applicability of those subparagraphs to an offense under subsection (A) by reasons of subsection (C)(3) with respect to —

(A) collateral damage; or

(B) death, damage, or injury incident to a lawful attack.

(4) Inapplicability of taking hostages to prisoner exchange.— Paragraph (1)(I) does not apply to an offense under subsection (A) by reason of subsection (C)(3) in the case of a prisoner exchange during wartime.

(5) Definition of grave breaches. – The definitions in this subsection are intended only to define the grave breaches of common Article 3 and not the full scope of United States obligations under that Article.

⁸⁶ 18 U.S.C.A. § 2441.

⁸⁷ Victoria K. Holt and Elisabeth W. Dallas, supra note 83, at 7.

⁸⁸ Id. at 35.

⁸⁹ 175 U.S. 677, 20 S.Ct. 290 (1900).

⁹⁰ Id. at 700; citing Hilton v. Guyot, 159 U.S. 113, 163, 164, 214, 215, 40 L. ed. 95, 108, 125, 126, 16 Sup. Ct. Rep. 139.

⁹¹ 14 U.S. 415, 1816 WL 1770 (U.S.Mass.) (1816).

⁹² 11 U.S. (7 Cranch) 32 (1812).

⁹³ Jordan J. Paust, Customary International Law and Human Rights Treaties are Law of the United States, 20 MIJIL 301, 309 (1999).

⁹⁴ 11 U.S. (7 Cranch) 32, 32 (1812).

⁹⁵ "x x x [C]ustomary international law is part of the law of the United States to the limited extent that, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations." U.S. v. Yousef, 327 F.3d 56, 92 (2003).

⁹⁶ 317 U.S. 1 (1942).

⁹⁷ Id. at 27-28; citing Talbot v. Jansen, 3 Dall. 133, 153, 159, 161, 1 L.Ed. 540; Talbot v. Seeman, 1 Cranch 1, 40, 41, 2 L.Ed. 15; Maley v. Shattuck, 3 Cranch 458, 488, 2 L.Ed. 498; Fitzsimmons v. Newport Ins. Co., 4 Cranch 185, 199, 2 L.Ed. 591; The Rapid, 8 Cranch 155, 159-164, 3 L.Ed. 520; The St. Lawrence, 9 Cranch 120, 122, 3 L.Ed. 676; Thirty Hogsheads of Sugar v. Boyle, 9 Cranch 191, 197, 198, 3 L.Ed. 701; The Anne, 3 Wheat. 435, 447, 448, 4 L.Ed. 428; United States v. Reading, 18 How. 1, 10, 15 L.Ed. 291; Prize Cases (The Amy Warwick), 2 Black 635, 666, 667, 687, 17 L.Ed. 459; The Venice, 2 Wall. 258, 274, 17 L.Ed. 866; The William Bagaley, 5 Wall. 377, 18 L.Ed. 583; Miller v. United States, 11 Wall. 268, 20 L.Ed. 135; Coleman v. Tennessee, 97 U.S. 509, 517, 24 L.Ed. 1118; United States v. Pacific R.R., 120 U.S. 227, 233, 7 S.Ct. 490, 492, 30 L.Ed. 634; Juragua Iron Co. v. United States, 212 U.S. 297, 29 S.Ct. 385, 53 L.Ed. 520.

⁹⁸ Id. at 29-30.

⁹⁹ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, I.C.J. judgment, February 26, 2007, § 161; M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59-AUT Law & Contemp. Probs. 63, 68.

¹⁰⁰ I.C.J. Statute, art. 38, ¶ 1 (b) international custom, as evidence of a general practice accepted as law.

¹⁰¹ North Sea Continental Shelf, 1969 I.C.J. ¶ 77; cited in Patrick Simon S. Perillo, Transporting the Concept of Creeping Expropriation from De Lege Ferenda to De Lege Lata: Concretizing the Nebulous Under International Law, 53 Ateneo L.J. 434, 509-510 (2008).

¹⁰² North Sea Continental Shelf, 1969 I.C.J. ¶ 77; D.J. Harris, Cases and Materials on International Law, 22 (2004).

¹⁰³ North Sea Continental Shelf, 1969 I.C.J. at 175 (Tanaka, J., dissenting).

¹⁰⁴ Fisheries Jurisdiction (U.K. v. Ice) (Merits), 1974 I.C.J. 3, 89-90 (de Castro, J., separate opinion).

¹⁰⁵ North Sea Continental Shelf, 1969 I.C.J. ¶ 77.

¹⁰⁶ M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59-AUT Law & Contemp. Probs. 63, 67.

¹⁰⁷ Id.

¹⁰⁸ Id.

¹⁰⁹ Carlee M. Hobbs, The Conflict Between the Alien Tort Statute Litigation and Foreign Amnesty Laws, 43 Vand. J. Transnat’l L. 505, 521 (2009-2010); citing Jeffrey L. Dunoff, et al., International Law: Norms, Actors Process 58-59 (2d ed., 2006).

¹¹⁰ Id.; citing Jeffrey L. Dunoff et al., International Law: Norms, Actors Process 380 (2d ed., 2006).

¹¹¹ Id.

¹¹² Id.

¹¹³ Pharmaceutical and Health Care Association of the Philippines v. Duque III, G.R. No. 173034, October 9, 2007, 535 SCRA 265.

¹¹⁴ See <http://www.icc-cpi.int/Menus/ASP/states+parties/> (last visited January 26, 2011).

¹¹⁵ <http://www.nationsonline.org oneworld /states.org> (last visited October 18, 2010). The list does not include dependent territories.

¹¹⁶ Joaquin G. Bernas, S.J., An Introduction to Public International Law 10-13 (2002); cited in Pharmaceutical and Health Care Association of the Philippines v. Duque III, supra note 113, at 292.

¹¹⁷ Pharmaceutical and Health Care Association of the Philippines, supra note 113, at 290-291; citation omitted.

¹¹⁸ Article 12. Preconditions to the exercise of jurisdiction.

1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.

2. In the case of Article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft.

(b) The State of which the person accused of the crime is a national.

¹¹⁹ Rome Statute of the International Criminal Court, Art. 25, par. 2.

¹²⁰ G.R. No. 180643, September 4, 2003, 564 SCRA 152, 197-198.

The Lawphil Project - Arellano Law Foundation

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DISSENTING OPINION

CARPIO, J.:

I dissent.

The RP-US Non-Surrender Agreement (Agreement) violates existing municipal laws on the Philippine State’s obligation to prosecute persons responsible for any of the international crimes of genocide, war crimes and other crimes against humanity. Being a mere executive agreement that is indisputably inferior to municipal law, the Agreement cannot prevail over a prior or subsequent municipal law inconsistent with it.

First, under existing municipal laws arising from the incorporation doctrine in Section 2, Article II of the Philippine Constitution,¹ the State is required to surrender to the proper international tribunal persons accused of grave international crimes, if the State itself does not exercise its primary jurisdiction to prosecute such persons.

Second, and more importantly, Republic Act No. 9851 (RA 9851) or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity requires that the RP-US Non-Surrender Agreement, which is in derogation of the duty of the Philippines to prosecute those accused of grave international crimes, should be ratified as a treaty by the Senate before the Agreement can take effect.

Section 2 of RA 9851 adopts as a State policy the following:

Section 2. Declaration of Principles and State Policies. -

(a) x x x

x x x

(e) The most serious crimes of concern to the international community as a whole must not go unpunished and their effective prosecution must be ensured by taking measures at the national level, in order to put an end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes, it being the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. (Emphasis supplied)

To implement this State policy, Section 17 of RA 9851 provides:

Section 17. Jurisdiction. - The State shall exercise jurisdiction over persons, whether military or civilian, suspected or accused of a crime defined and penalized in this Act, regardless of where the crime is committed, provided, any one of the following conditions is met:

(a) The accused is a Filipino citizen;

(b) The accused, regardless of citizenship or residence, is present in the Philippines; or

(c) The accused has committed the said crime against a Filipino citizen.

In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties. (Boldfacing, italicization and underscoring supplied)

Section 2(e) and Section 17 impose on the Philippines the "duty" to prosecute a person present in the Philippines, "regardless of citizenship or residence" of such person, who is accused of committing a crime under RA 9851 "regardless of where the crime is committed." The Philippines is expressly mandated by law to prosecute the accused before its own courts.

If the Philippines decides not to prosecute such accused, the Philippines has only two options. First, it may surrender the accused to the "appropriate international court" such as the International Criminal Court (ICC). Or second, it may surrender the accused to another State if such surrender is "pursuant to the applicable extradition laws and treaties." Under the second option, the Philippines must have an applicable extradition law with the other State, or both the Philippines and the other State must be signatories to an applicable treaty. Such applicable extradition law or treaty must not frustrate the Philippine State policy, which embodies a generally accepted principle of international law, that it is "the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes."

In any case, the Philippines can exercise either option only if "another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime." In short, the Philippines should surrender the accused to another State only if there is assurance or guarantee by the other State that the accused will be prosecuted under the other State's criminal justice system. This assurance or guarantee springs from the principle of international law that it is "the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes."

There is at present no "applicable" extradition law or treaty allowing the surrender to the United States of U.S. nationals accused of crimes under RA 9851, specifically, Crimes against International Humanitarian Law or War Crimes,² Genocide,³ and Other Crimes against Humanity.⁴

The RP-US Extradition Treaty cannot be considered an applicable extradition law or treaty. Paragraph 1, Article 2 of the RP-US Extradition Treaty provides: "An offense shall be an extraditable offense if it is punishable under the laws in both Contracting Parties xxx."⁵

The rule in the United States is that a person cannot be tried in the federal courts for an international crime unless the U.S. Congress adopts a law defining and punishing the offense.⁶ In Medellin v. Texas,⁷ the U.S. Supreme Court held that "while treaties ῾may comprise international commitments ... they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be self-executing’ and is ratified on these terms." The U.S. Congress has not enacted legislation to implement the Geneva Conventions of 1949 (Geneva Conventions)⁸ which is one of the foundations of the principles of International Humanitarian Law. While the U.S. Senate has ratified the Geneva Conventions,⁹ the ratification was not intended to make the Geneva Conventions self-executing under U.S. domestic law.¹⁰

The United States has not ratified the Rome Statute of International Criminal Court (Rome Statute). While the Philippines has also not ratified the Rome Statute, it has criminalized under RA 9851 all the acts defined in the Rome Statute as Genocide, War Crimes and Other Crimes against Humanity. There is no similar legislation in the United States.

Not all crimes punishable under the Rome Statute are considered crimes under U.S. laws. A report¹¹ based partly on interviews with representatives of the U.S. delegation in Rome stated: "The domestic laws of the United States xxx do not cover every crime listed within the jurisdiction of the [International Criminal] Court."¹² The report further explained the gap between the definitions of Genocide, War Crimes and Other Crimes against Humanity, under the Rome Statute and under U.S. domestic laws, in this wise:¹³

ICC Statute in Contrast to the US Code

In conversations with both proponents and opponents of the Court, many suggested that while the US has objected to the Court’s potential authority

over US service members, what really lies behind that concern is the recognition that those most vulnerable to the scrutiny of the Court are notably higher up in the chain of command: the civilian and senior military leadership.

Legal experts, both in the military and outside, pointed out that there were more likely to be "gaps" between the US Code and the Rome Statute than gaps with the Uniform Code of Military Justice. After retirement, military personnel are not covered by the UCMJ, but instead would be held accountable to the US Code, in particular Title 10 and Title 18. For some retired military personnel, this was an area of some concern.

These individuals offered that former leaders, in particular the "Henry Kissingers of the world," are most at risk. Indeed, they stressed that as the main concern for the US: that the Court will take up cases of former senior civilian leadership and military officials who, acting under the laws of war, are no longer covered by the UCMJ and therefore, potentially open to gaps in federal law where the US ability to assert complementarity is nebulous. The fear is that they could be subject to ICC prosecution for actions they did previously in uniform.

One legal scholar pointed out that several crimes defined within the Rome Statute do not appear on the US books (e.g., apartheid, persecution, enslavement, and extermination.) While similar laws exist, it would be within the competency of the Chief Prosecutor to argue before the Pre-Trial Chamber¹⁴ that in fact, the US does not have laws to prosecute for the crimes that have been committed. A similar situation arose in 1996, when Congressman Walter Jones (R-NC) determined through a series of investigations that civilians serving overseas under a contract with the US military were not covered under the UCMJ. It had been assumed that the US Code gave US primacy over civilians serving in a military capacity, but instead it was discovered that if a civilian serving with a military unit deployed overseas is accused of war crime, the foreign state whose territory the crimes were committed in would in fact have primary jurisdiction to try the case. Therefore, Rep. Jones authored the "War Crimes Act of 1996," which was designed to cover civilian serving in a military capacity.¹⁵

To ensure that no gaps exist between the US Code, the UCMJ, and the crimes within the Court’s jurisdiction, a similar effort could be made. This process would need to identify first where crimes exist in the Statute that are not covered in some context through Title 10 and Title 18 of the US Code and then draft legislation – modeled after the War Crimes Act – designed to fill gaps. This would protect former US service members and senior civilian leadership from ICC prosecution.

There is very little discussion today about the gaps in law. Scholars are aware of the potential gaps and see this area as one where the US might be able to move forward to clarify legal ambiguities that may exist, and to make corrections to US laws. This exercise would strengthen the US assertion of complementarity. (Emphasis supplied)

The same report added, "At Rome, the U.S. was concerned with the definition of crimes, especially the definition of war crimes and, to lesser extent, the definition of crimes against humanity xxx;"¹⁶ that the crime of genocide was acceptable to the U.S. delegation; and that throughout the negotiations, the U.S. position was to seek one hundred percent assurance that U.S. service members would only be held accountable to U.S. systems of justice.¹⁷

With the existing gap between the crimes of Genocide, War Crimes and Other Crimes against Humanity under the Rome Statute - now all criminalized in the Philippines under RA 9851 on the one hand, and U.S. domestic laws on the other, these crimes cannot be considered "punishable under the laws in both Contracting Parties" as required under the RP-US Extradition Treaty, and hence, cannot be considered as extraditable offenses under the treaty. The crimes considered as Genocide, War Crimes, and Other Crimes against Humanity under the Rome Statute and RA 9851 may not necessarily be considered as such crimes under United States laws. Consequently, the RP-US Extradition Treaty does not qualify as an "applicable"extradition law or treaty under Section 17 of RA 9851, which allows the Philippines to surrender to another state a person accused of Genocide, War Crimes and Other Crimes against Humanity. In short, the Philippines cannot surrender to the United States a U.S. national accused of any of these grave international crimes, when the United States does not have the same or similar laws to prosecute such crimes.

Neither is the RP-US Non-Surrender Agreement an "applicable" extradition law or treaty as required in Section 17 of RA 9851. Thus, the Agreement cannot be implemented by the Philippine Government in the absence of an applicable extradition law or treaty allowing the surrender to the United States of U.S. nationals accused of crimes under RA 9851.

If a U.S. national is under investigation or prosecution by an international tribunal for any crime punishable under RA 9851, the Philippines has the option to surrender such U.S. national to the international tribunal if the Philippines decides not to prosecute such U.S. national in the Philippines. This option of the Philippine Government under Section 17 of RA 9851 is not subject to the consent of the United States. Any derogation from Section 17, such as requiring the consent of the United States before the Philippines can exercise such option, requires an amendment to RA 9851 by way of either an extradition law or treaty. Such an amendment cannot be embodied in a mere executive agreement or an exchange of notes such as the assailed Agreement.

Section 17 of RA 9851 has clearly raised to a statutory level the surrender to another State of persons accused of any crime under RA 9851. Any agreement in derogation of Section 17, such as the surrender to the U.S. of a U.S. national accused of an act punishable under RA 9851 but not punishable under U.S. domestic laws, or the non-surrender to an international tribunal, without U.S. consent, of a U.S. national accused of a crime under RA 9851, cannot be made in a mere executive agreement or an exchange of notes. Such surrender or non-surrender, being contrary to Section 17 of RA 9851, can only be made in an amendatory law, such as a subsequent extradition law or treaty.

Moreover, Section 17 of RA 9851 allows the surrender to another State only "if another court xxx is already conducting the investigation or undertaking the prosecution of such crime." This means that only if the other State is already investigating or prosecuting the crime can the Philippines surrender the accused to such other State. The RP-US Non-Surrender Agreement does not require that the United States must already be investigating or prosecuting the crime before the Philippines can surrender the accused. In fact, a U.S. national accused of a crime under RA 9851 may not even be chargeable of such crime in the U.S. because the same act may not be a crime under U.S. domestic laws. In such a case, the U.S. cannot even conduct an investigation of the accused, much less prosecute him for the same act. Thus, the RP-US Non-Surrender Agreement violates the condition in Section 17 of RA 9851 that the other State must already be investigating or prosecuting the accused for the crime penalized under RA 9851 before the Philippines can surrender such accused.

To repeat, the assailed Agreement prevents the Philippines, without the consent of the United States, from surrendering to any international tribunal U.S. nationals accused of crimes under RA 9851. Such consent is not required under RA 9851which mandates that any non-surrender without the consent of another State must be embodied in an extradition law or treaty. The assailed Agreement also dispenses with the condition in Section 17 that before the Philippines can surrender the accused to the United States, the accused must already be under investigation or prosecution by the United States for the crime penalized under RA 9851, a condition that may be impossible to fulfill because not all crimes under RA 9851 are recognized as crimes in the United States. Thus, the Agreement violates Section 17 of RA 9851 as well as existing municipal laws arising from the incorporation doctrine of the Constitution. The Agreement cannot be embodied in a simple executive agreement or an exchange of notes, but must be implemented through an extradition law or a treaty ratified with the concurrence of at least two-thirds of all the members of the Senate.

In international law, there is no difference between treaties and executive agreements on their binding effect upon party states, as long as the negotiating functionaries have remained within their powers.¹⁸ However, while the differences in nomenclature and form of various types of international agreements are immaterial in international law, they have significance in the municipal law of the parties.¹⁹ An example is the requirement of concurrence of the legislative body with respect to treaties, whereas with respect to executive agreements, the head of State may act alone to enforce such agreements.²⁰

The 1987 Philippine Constitution provides: "No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate."²¹ This express constitutional requirement makes treaties different from executive agreements, which require no legislative concurrence.

An executive agreement can only implement, and not amend or repeal, an existing law. As I have discussed in Suplico v. National Economic and Development Authority,²² although an executive agreement has the force and effect of law, just like implementing rules of executive agencies, it cannot amend or repeal prior laws, but must comply with the laws it implements.²³ An executive agreement, being an exclusive act of the Executive branch, does not have the status of a municipal law.²⁴ Acting alone, the Executive has no law-making power; and while it has rule-making power, such power must be exercised consistent with the law it seeks to implement.²⁵

Thus, an executive agreement cannot amend or repeal a prior law, but must comply with State policy embodied in an existing municipal law.²⁶ This also means that an executive agreement, which at the time of its execution complies with then existing law, is deemed amended or repealed by a subsequent law inconsistent with such executive agreement. Under no circumstance can a mere executive agreement prevail over a prior or subsequent law inconsistent with such executive agreement.

This is clear from Article 7 of the Civil Code, which provides:

Article 7. x x x

Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. (Emphasis supplied)

An executive agreement like the assailed Agreement is an executive act of the President. Under Article 7 of the Civil Code, an executive agreement contrary to a prior law is void. Similarly, an executive agreement contrary to a subsequent law becomes void upon the effectivity of such subsequent law. Since Article 7 of the Civil Code provides that "executive acts shall be valid only when they are not contrary to the laws," once an executive act becomes contrary to law such executive act becomes void even if it was valid prior to the enactment of such subsequent law.

A treaty, on the other hand, acquires the status of a municipal law upon ratification by the Senate. Hence, a treaty may amend or repeal a prior law and vice-versa.²⁷ Unlike an executive agreement, a treaty may change state policy embodied in a prior and existing law.

In the United States, from where we adopted the concept of executive agreements, the prevailing view is that executive agreements cannot alter existing law but must conform to all statutory requirements.²⁸ The U.S. State Department made a distinction between treaties and executive agreements in this manner:

x x x it may be desirable to point out here the well-recognized distinction between an executive agreement and a treaty. In brief, it is that the former cannot alter the existing law and must conform to all statutory enactments, whereas a treaty, if ratified by and with the advice and consent of two-thirds of the Senate, as required by the Constitution, itself becomes the supreme law of the land and takes precedence over any prior statutory enactments.²⁹ (Emphasis supplied)

The Agreement involved in this case is an executive agreement entered into via an exchange of notes.³⁰ The parties to the Agreement (RP and US) agree not to surrender each other’s nationals³¹ to any international tribunal or to a third party for the purpose of surrendering to any international tribunal, without the other’s consent, pursuant to the pronounced objective of "protect[ing] Philippine and American personnel from frivolous and harassment suits that might be brought against them in international tribunals."³² The Agreement amends existing Philippine State policy as embodied in municipal law arising from generally accepted principles of international law which form part of the law of the land. The Agreement also runs counter to RA 9851 which criminalized wholesale all acts defined as international crimes in the Rome Statute, an international treaty which the Philippines has signed but has still to ratify.³³ The Agreement frustrates the objectives of generally accepted principles of international law embodied in the Rome Statute. Thus, considering its nature, the Agreement should be embodied not in an executive agreement, but in a treaty which, under the Philippine Constitution, shall be valid and effective only if concurred in by at least two-thirds of all the members of the Senate.

The 1987 Philippine Constitution states as one of its principles, as follows:

The Philippines x x x adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.³⁴

This constitutional provision enunciates the doctrine of incorporation which mandates that the Philippines is bound by generally accepted principles of international law which automatically form part of Philippine law by operation of the Constitution.³⁵

In Kuroda v. Jalandoni,³⁶ this Court held that this constitutional provision "is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory." The pertinent portion of Kuroda states:

It cannot be denied that the rules and regulation of The Hague and Geneva Conventions form part of and are wholly based on the generally accepted principles of international law. x x x Such rule and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory.³⁷ (Emphasis supplied)

Hence, generally accepted principles of international law form part of Philippine laws even if they do not derive from treaty obligations of the Philippines.³⁸

Generally accepted principles of international law, as referred to in the Constitution, include customary international law.³⁹ Customary international law is one of the primary sources of international law under Article 38 of the Statute of the International Court of Justice.⁴⁰ Customary international law consists of acts which, by repetition of States of similar international acts for a number of years, occur out of a sense of obligation, and taken by a significant number of States.⁴¹ It is based on custom, which is a clear and continuous habit of doing certain actions, which has grown under the aegis of the conviction that these actions are, according to international law, obligatory or right.⁴² Thus, customary international law requires the concurrence of two elements: "[1] the established, wide-spread, and consistent practice on the part of the States; and [2] a psychological element known as opinion juris sive necessitatis (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it."⁴³

Some customary international laws have been affirmed and embodied in treaties and conventions. A treaty constitutes evidence of customary law if it is declaratory of customary law, or if it is intended to codify customary law. In such a case, even a State not party to the treaty would be bound thereby.⁴⁴ A treaty which is merely a formal expression of customary international law is enforceable on all States because of their membership in the family of nations.⁴⁵ For instance, the Vienna Convention on Consular Relations is binding even on non-party States because the provisions of the Convention are mostly codified rules of customary international law binding on all States even before their codification into the Vienna Convention.⁴⁶ Another example is the Law of the Sea, which consists mostly of codified rules of customary international law, which have been universally observed even before the Law of the Sea was ratified by participating States.⁴⁷

Corollarily, treaties may become the basis of customary international law. While States which are not parties to treaties or international agreements are not bound thereby, such agreements, if widely accepted for years by many States, may transform into customary international laws, in which case, they bind even non-signatory States.⁴⁸

In Republic v. Sandiganbayan,⁴⁹ this Court held that even in the absence of the Constitution,⁵⁰ generally accepted principles of international law remain part of the laws of the Philippines. During the interregnum, or the period after the actual takeover of power by the revolutionary government in the Philippines, following the cessation of resistance by loyalist forces up to 24 March 1986 (immediately before the adoption of the Provisional Constitution), the 1973 Philippine Constitution was abrogated and there was no municipal law higher than the directives and orders of the revolutionary government. Nevertheless, this Court ruled that even during this period, the provisions of the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights, to which the Philippines is a signatory, remained in effect in the country. The Covenant and Declaration are based on generally accepted principles of international law which are applicable in the Philippines even in the absence of a constitution, as during the interregnum. Consequently, applying the provisions of the Covenant and the Declaration, the Filipino people continued to enjoy almost the same rights found in the Bill of Rights despite the abrogation of the 1973 Constitution.

The Rome Statute of the International Criminal Court was adopted by 120 members of the United Nations (UN) on 17 July 1998.⁵¹ It entered into force on 1 July 2002, after 60 States became party to the Statute through ratification or accession.⁵² The adoption of the Rome Statute fulfilled the international community’s long-time dream of creating a permanent international tribunal to try serious international crimes. The Rome Statute, which established an international criminal court and formally declared genocide, war crimes and other crimes against humanity as serious international crimes, codified generally accepted principles of international law, including customary international laws. The principles of law embodied in the Rome Statute were already generally accepted principles of international law even prior to the adoption of the Statute. Subsequently, the Rome Statute itself has been widely accepted and, as of November 2010, it has been ratified by 114 states, 113 of which are members of the UN.⁵³

There are at present 192 members of the UN. Since 113 member states have already ratified the Rome Statute, more than a majority of all the UN members have now adopted the Rome Statute as part of their municipal laws. Thus, the Rome Statute itself is generally accepted by the community of nations as constituting a body of generally accepted principles of international law. The principles of law found in the Rome Statute constitute generally accepted principles of international law enforceable in the Philippines under the Philippine Constitution. The principles of law embodied in the Rome Statute are binding on the Philippines even if the Statute has yet to be ratified by the Philippine Senate. In short, the principles of law enunciated in the Rome Statute are now part of Philippine domestic law pursuant to Section 2, Article II of the 1987 Philippine Constitution.

Article 89(1) of the Rome Statute provides as follows:

Surrender of persons to the Court

1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.

x x x x

It is a principle of international law that a person accused of genocide, war crimes and other crimes against humanity shall be prosecuted by the international community. A State where such a person may be found has the primary jurisdiction to prosecute such person, regardless of nationality and where the crime was committed. However, if a State does not exercise such primary jurisdiction, then such State has the obligation to turn over the accused to the international tribunal vested with jurisdiction to try such person. This principle has been codified in Section 2(e) and Section 17 of RA 9851.

Moreover, Section 15 of RA 9851 has expressly adopted "[r]elevant and applicable international human rights instruments" as sources of international law in the application and interpretation of RA 9851, thus:

Section 15. Applicability of International Law. - In the application and interpretation of this Act, Philippine courts shall be guided by the following sources:

(a) x x x

x x x

(e) The rules and principles of customary international law;

x x x

(g) Relevant and applicable international human rights instruments;

(h) Other relevant international treaties and conventions ratified or acceded to by the Republic of the Philippines; and

x x x. (Emphasis supplied)

The Rome Statute is the most relevant and applicable international human rights instrument in the application and interpretation of RA 9851. Section 15(g) of RA 9851 authorizes the use of the Rome Statute as a source of international law even though the Philippines is not a party to the Rome Statute. Section 15(g) does not require ratification by the Philippines to such relevant and applicable international human rights instruments. International human rights instruments to which the Philippines is a party are governed by Section 15(h), referring to treaties or conventions "ratified or acceded to" by the Philippines, which constitute a different category of sources of international law under Section 15 of RA 9851. Thus, Section 15(g) and Section 15(h) refer to different instruments, the former to international human rights instruments to which the Philippines is not a party, and the latter to international human rights instruments to which the Philippines is a party. By mandate of Section 15 of RA 9851, both categories of instruments are sources of international law in the application and interpretation of RA 9851.

However, paragraph 2 of the assailed RP-US Non-Surrender Agreement provides as follows:

2. Persons of one Party present in the territory of the other shall not, absent the express consent of the first Party,

(a) be surrendered or transferred by any means to any international tribunal for any purpose, unless such tribunal has been established by the UN Security Council, or

(b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for the purpose of surrender to or transfer to any international tribunal, unless such tribunal has been established by the UN Security Council.

Clearly, the Agreement is in derogation of Article 89(1) of the Rome Statute. While Article 98(2) of the Rome Statute, which states as follows:

2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender." (Emphasis supplied)

allows for derogation of Article 89(1) if there is an international agreement between States allowing such derogation, such international agreement, being in derogation of an existing municipal law insofar as the Philippines is concerned, must be embodied in a treaty and ratified by the Philippine Senate. Article 98(2) does not ipso facto allow a derogation of Article 89(1), but requires a further act, that is, the execution of an international agreement. Since such international agreement is in derogation of Article 89(1) of the Rome Statute and Section 17 of RA 8951, such international agreement must be ratified by the Senate to become valid and effective.

Incidentally, the RP-US Non-Surrender Agreement allows the Philippines to surrender, even without U.S. consent, a U.S. national accused of a crime under RA 9851 provided that the surrender is made to an "international tribunal xxx established by the UN Security Council." The United States agrees to this because it has a veto power in the UN Security Council, a blocking power which it does not have, and cannot have, in the International Criminal Court.

The International Criminal Court created under the Rome Statute was designed to complement the efforts of states to prosecute their own citizens domestically while ensuring that those who violate international law would be brought to justice.⁵⁴ A state is given a chance to exercise complementarity⁵⁵ by informing the ICC of its choice to investigate and prosecute its own nationals through its own domestic courts.⁵⁶ Thus, the State has the primary jurisdiction to investigate and prosecute its own nationals in its custody who may have committed the grave international crimes specified in the Rome Statute. Under the same precept, Article 98(2) of the Rome Statute allows the State of the accused to act consistently with its obligations under international agreements, and the ICC "may not proceed with a request for surrender" which would require such State to act otherwise. The ICC steps in and assumes jurisdiction only if the State having primary jurisdiction and custody of the accused refuses to fulfill its international duty to prosecute those responsible for grave international crimes.

The United States has not ratified the Rome Statute, and instead, entered into bilateral non-surrender agreements with countries, citing its ability to do so under Article 98(2) of the Rome Statute.⁵⁷ These agreements, also called Bilateral Immunity Agreements (BIA),⁵⁸ were intended as "means [to provide] assurances that no U.S. citizen would be handed over to the (International Criminal) Court for investigation and prosecution of alleged crimes that fell within the Court’s jurisdiction. xxx"⁵⁹ There is currently an argument within the international community about the use of Article 98 agreements, as negotiated by the U.S. after the adoption of the Rome Statute, and whether they should be recognized as having precedent over ICC’s authority.⁶⁰ When Article 98 was originally included in the Rome Statute, it was intended to cover Status of Forces Agreements (SOFAs) and Status of Missions Agreements (SOMAs),⁶¹ which establish the responsibilities of a nation sending troops to another country, as well as where jurisdiction lies between the U.S. and the host government over criminal and civil issues involving the deployed personnel.⁶² However, under the BIAs, the standard definition of "persons" covered is "current or former Government officials, employees (including contractors), or military personnel or nationals of one party."⁶³ The Bush Administration⁶⁴ contends that "such bilateral non-surrender agreements are Article 98(2) agreements and that all US citizens of whatever character are covered by any such agreement, xxx [and this] US position on scope of the bilateral non-surrender agreements, namely that it includes US citizens acting in their private capacity, ῾is legally supported by the text, the negotiating record, and precedent.’"⁶⁵ Meanwhile, international legal scholars and members of the US JAG Corps involved in the drafting of the Rome Statute expressed frustration with the "expansive use of Article 98 agreements to apply to all Americans, not just those individuals usually covered in SOFAs and SOMAs."⁶⁶ There are even those who contend that since the BIAs do not deal solely with the conduct of official business, rather, they apply to a wide variety of persons who may be on the territory of either party for any purpose at any time, then "the Rome Statute does not authorize these agreements and by adhering to them, the countries will violate their obligations to the [ICC] under the Statute."⁶⁷> Regardless of these contentions, however, the ultimate judge as to what agreement qualifies under Article 98(2) of the Rome Statute is the ICC itself.⁶⁸

The assailed RP-US Non-Surrender Agreement covers "officials, employees, military personnel, and nationals." Under the Agreement, the Philippines is not allowed, without U.S. consent, to surrender to an international tribunal, including the ICC, U.S. nationals — whether military personnel or plain civilians — accused of genocide, war crimes and other crimes against humanity, that is, the crimes covered by the Rome Statute and RA 9851. Whether or not this Agreement would be recognized by the ICC as an "international agreement" qualified under Article 98(2) depends on the ICC itself. In the domestic sphere, however, the Agreement, being in derogation of the generally accepted principles of international law embodied in Article 89(1) of the Rome Statute, as well as being contrary to the provisions of Section 17 of RA 9851, should be ratified by the Philippine Senate to be valid and effective.

In sum, any derogation from the generally accepted principles of international law embodied in the Rome Statute, which principles have the status of municipal law in this country, cannot be undertaken through a mere executive agreement because an executive agreement cannot amend existing laws. A law or a treaty ratified by the Philippine Senate is necessary to amend, for purposes of domestic law, a derogable principle of international law, such as Article 89(1) of the Rome Statute, which has the status of municipal law.

Likewise, any derogation from the surrender option of the Philippines under Section 17 of RA 9851 must be embodied in an applicable extradition law or treaty and not in a mere executive agreement because such derogation violates RA 9851, which is superior to, and prevails over, a prior executive agreement allowing such derogation. Under no circumstance can a mere executive agreement prevail over a prior or subsequent law inconsistent with such executive agreement. Thus, the RP-US Non-Surrender Agreement to be valid and effective must be ratified by the Philippine Senate, and unless so ratified, the Agreement is without force and effect.

Accordingly, I vote to GRANT the petition and to DECLARE the RP-US Non-Surrender Agreement ineffective and unenforceable unless and until ratified by the Senate of the Philippines.

ANTONIO T. CARPIO
Associate Justice

Footnotes

¹ CONSTITUTION (1987), Art. II, Sec. 2 provides: "The Philippines xxx adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations."

² Section 4 of RA 9851 provides:

Section 4. War Crimes. - For the purpose of this Act, "war crimes" or "crimes against International Humanitarian Law" means:

(a) In case of an international armed conflict , grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under provisions of the relevant Geneva Convention:

(1) Willful killing;

(2) Torture or inhuman treatment, including biological experiments;

(3) Willfully causing great suffering, or serious injury to body or health;

(4) Extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly;

(5) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(6) Arbitrary deportation or forcible transfer of population or unlawful confinement;

(7) Taking of hostages;

(8) Compelling a prisoner a prisoner of war or other protected person to serve in the forces of a hostile power; and

(9) Unjustifiable delay in the repatriation of prisoners of war or other protected persons.

(b) In case of a non-international armed conflict, serious violations of common Article 3 to the four (4) Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including member of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause;

(1) Violence to life and person, in particular, willful killings, mutilation, cruel treatment and torture;

(2) Committing outrages upon personal dignity, in particular, humiliating and degrading treatment;

(3) Taking of hostages; and

(4) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

(c) Other serious violations of the laws and customs applicable in armed conflict, within the established framework of international law, namely:

(1) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(2) Intentionally directing attacks against civilian objects, that is, object which are not military objectives;

(3) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions or Additional Protocol III in conformity with intentional law;

(4) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

(5) Launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be excessive in relation to the concrete and direct military advantage anticipated;

(6) Launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, and causing death or serious injury to body or health.

(7) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives, or making non-defended localities or demilitarized zones the object of attack;

(8) Killing or wounding a person in the knowledge that he/she is hors de combat, including a combatant who, having laid down his/her arms or no longer having means of defense, has surrendered at discretion;

(9) Making improper use of a flag of truce, of the flag or the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions or other protective signs under International Humanitarian Law, resulting in death, serious personal injury or capture;

(10) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives. In case of doubt whether such building or place has been used to make an effective contribution to military action, it shall be presumed not to be so used;

(11) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind, or to removal of tissue or organs for transplantation, which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his/her interest, and which cause death to or seriously endanger the health of such person or persons;

(12) Killing, wounding or capturing an adversary by resort to perfidy;

(13) Declaring that no quarter will be given;

(14) Destroying or seizing the enemy’s property unless such destruction or seizure is imperatively demanded by the necessities of war;

(15) Pillaging a town or place, even when taken by assault;

(16) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;

(17) Transferring, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

(18) Committing outrages upon personal dignity, in particular, humiliating and degrading treatment;

(19) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions or a serious violation of common Article 3 to the Geneva Conventions;

(20) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;

(21) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions and their Additional Protocols;

(22) In an international armed conflict, compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war;

(23) In an international armed conflict, declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;

(24) Committing any of the following acts:

(i) Conscripting, enlisting or recruiting children under the age of fifteen (15) years into the national armed forces;

(ii) Conscripting, enlisting or recruiting children under the age of eighteen (18) years into an armed force or group other than the national armed forces; and

(iii) Using children under the age of eighteen (18) years to participate actively in hostilities; and

(25) Employing means of warfare which are prohibited under international law, such as:

(i) Poison or poisoned weapons;

(ii) Asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

(iii) Bullets which expand or flatten easily in the human body, such as bullets with hard envelopes which do not entirely cover the core or are pierced with incisions; and

(iv) Weapons, projectiles and material and methods of warfare which are of the nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict.

x x x x

³ Section 5 of RA 9851 provides:

Section 5. Genocide. - (a) For the purpose of this Act, "genocide" means any of the following acts with intent to destroy, in whole or in part, a national, ethnic, racial, religious, social or any other similar stable and permanent group as such:

(1) Killing members of the group;

(2) Causing serious bodily or mental harm to members of the group;

(3) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(4) Imposing measures intended to prevent births within the group; and

(5) Forcibly transferring children of the group to another group.

(b) It shall be unlawful for any person to directly and publicly incite others to commit genocide.

x x x x

⁴ Section 6 of RA 9851 provides:

Section 6. Other Crimes Against Humanity. - For the purpose of this Act, "other crimes against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Willful killing;

(b) Extermination;

(c) Enslavement;

(d) Arbitrary deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, sexual orientation or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime defined in this Act;

(i) Enforced or involuntary disappearance of persons;

(j) Apartheid; and

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

x x x x

⁵ Emphasis supplied.

⁶ U.S. v. Coolidge, 14 U.S. 415, 1816 WL 1770 (U.S. Mass.) 4 L.Ed. 124, 1 Wheat. 415.

⁷ 552 U.S. 491, 128 S. Ct. 1346 (2008).

⁸ The Geneva Conventions of 12 August 1949 consists of four Conventions or International Agreements:

Convention I - for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. (1864); Convention II - for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1906); Convention III - Relative to the Treatment of Prisoners of War (1929); and Convention IV - Relative to the Protection of Civilian Persons in Time of War (1949). There are three Protocols to the Geneva Conventions: Protocol I - Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977; Protocol II - Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977; and Protocol III - Relating to the Adoption of an Additional Distinctive Emblem, 8 December 2005. See http://www.icrc.org/web/eng/siteeng0.nsf/html/genevaconventions; last visited on 21 July 2010.

⁹ The U.S. ratified the Geneva Conventions of 1949 on 02 August 1955; the U.S. made Reservations on 02 August 1955, 04 March 1975, and 31 December 1974. See http://www.icrc.org/ihl.nsf/NORM/D6B53F5B5D14F35AC1256402003F9920?OpenDocument;

last visited on 21 July 2010.

¹⁰ In Medellin v. Texas, supra note 7, the U.S. Supreme Court emphasized:

"This Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that- while they constitute international law commitments- do not by themselves function as binding federal law. xxx a treaty is ῾equivalent to an act of the legislature,’ and hence self-executing, when it ῾operates of itself without the aid of any legislative provision.’ xxx When, in contrast, ῾[treaty] stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect.’" (Citations omitted)

¹¹ Victoria K. Holt and Elisabeth W. Dallas, "On Trial: The US Military and the International Criminal Court," The Henry L. Stimson Center, Report No. 55, March 2006; available at http://www.stimson.org/fopo/pdf/US_Military_and_the_ICC_FINAL_website.pdf; last visited on 02 August 2010.

This is a Report issued by the Henry Stimson Center which is described as a nonprofit, nonpartisan institution devoted to enhancing international peace and security through a unique combination of rigorous analysis and outreach. It has a stated mission of "urging pragmatic steps toward the ideal objectives of international peace and security." See http://www.stimson.org/ about/?sn=AB2001110512; last visited on 11 August 2010.

¹² Id. at 34-35.

The "Court" refers to the International Criminal Court.

¹³ Id. at 45-46.

¹⁴ The International Criminal Court has four organs: the Chambers, the Presidency, the Registry and the Office of the Prosecutor. The Chambers is composed of 18 judges divided into three divisions: the Pre-Trial Chamber, the Trial Chamber and the Appeals Chamber. [Id. at 22.]

¹⁵Report’s Footnote: "He amended Article 18 section 2441 of the US Federal Code 2441. US Code, Title 18, Part 1, Chapter 118, Section 2441, states... ῾(b) Circumstances – The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).’" [Id. at 45.]

¹⁶ Id. at 34.

¹⁷ Id., citing Interviews with representatives of the US delegation in Rome, 28 June 2005 and 6 October 2005, and comments from the Stimson Workshop.

¹⁸ Bayan v. Zamora, G.R. No. 138570, 10 October 2000, 342 SCRA 449, 489, citing Richard J. Erickson, "The Making of Executive Agreements by the United States Department of Defense: An Agenda for Progress," 13 Boston U. Intl. L.J. 58 (1995).

¹⁹ Jorge R. Coquia and Miriam Defensor Santiago, Public International Law (1984), p. 585.

²⁰ Id.

²¹ CONSTITUTION (1987), Art. VII, Sec. 21.

²² Dissenting Opinion, G.R. No. 178830, 14 July 2008, 558 SCRA 329, 360-391.

²³ Id. at 376, citing Land Bank of the Philippines v. Court of Appeals, 319 Phil. 246 (1995).

²⁴ Id.

²⁵ Id.

²⁶ Id.

²⁷ Id., citing Secretary of Justice v. Lantion, 379 Phil. 165 (2000).

²⁸ Id. at 377.

²⁹ Id., citing Prof. Edwin Borchard (Justus S. Hotchkiss Professor of Law, Yale Law School), Treaties and Executive Agreements - A Reply, Yale Law Journal, June 1945, citing Current Information Series, No. 1, 3 July 1934, quoted in 5 Hackworth, Digest of International Law (1943) pp. 425-426.

³⁰ E/N BFO-028-03; Paper on the RP-US Non-Surrender Agreement, rollo, p. 72.

An "exchange of notes" is "an interchange of diplomatic notes between a diplomatic representative and the minister of foreign affairs of the State to which he is accredited. xxx" [Coquia and Santiago, supra note 3, p. 584.] It is a record of routine agreement, consisting of the exchange of two or more documents, each of the parties being in the possession of the one signed by the representative of the other, and is resorted to because of its speedy procedure, or to avoid the process of legislative approval. [Ruben Agpalo, Public International Law (2006), p. 379.]

³¹ The Agreement actually uses the term "persons" which refer to "Government officials, employees (including contractors), or military personnel or nationals of one Party." See rollo, p. 68.

³² Paper on the RP-US Non-Surrender Agreement, supra note 30.

³³ The Philippines signed the Rome Statute of International Criminal Court on 28 December 2000, but has yet to ratify the same. See www.iccnow.org; last visited on 12 July 2010.

³⁴ CONSTITUTION (1987), Art. II, Sec. 2.

³⁵ Agpalo, supra note 30, p. 421.

³⁶ 83 Phil. 171, 178 (1949).

³⁷ Id.

³⁸ Mijares v. Ranada, G.R. No. 139325, 12 April 2005, 455 SCRA 397, 421 citing H. Thirlway, "The Sources of International Law," International Law (ed. by M. Evans, 1st ed, 2003), p. 124.

³⁹ Jovito Salonga and Pedro Yap, Public International Law, 5th ed. (1992), p. 12.

⁴⁰ Article 38 of the Statute of International Court of Justice reads:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

x x x x

⁴¹ Agpalo, supra note 30, p. 6.

⁴² Id., citing Oppenheimer’s International Law, 9th ed., p. 27.

⁴³ Id. at 7, citing Mijares v. Ranada, supra note 38.

⁴⁴ Isagani Cruz, International Law (1998), p. 23.

⁴⁵ Id. at 175.

⁴⁶ Agpalo, supra note 30, p. 9.

⁴⁷ Id.

⁴⁸ Id. at 6.

⁴⁹ G.R. No. 104768, 23 July 2003, 407 SCRA 10, 51, 56-57.

⁵⁰ The 1973 Philippine Constitution also provides for the Doctrine of Incorporation, to wit:

Article II
Declaration of Principles and State Policies

x x x x

Section 3. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

⁵¹ http://www.un.org/News/facts/iccfact.htm; last visited on 1 November 2010.

⁵² Id.

⁵³ See http://www.un.org/en/members/index.shtml and http://www.icc-cpi.int/Menus/ASP/ states+parties; last visited on 1 November 2010.

⁵⁴ Victoria K. Holt and Elisabeth W. Dallas, "On Trial: The US Military and the International Criminal Court," The Henry L. Stimson Center, Report No. 55, supra note 11, pp. 21-22.

⁵⁵ "Under the premise of complementarity, the primary jurisdiction for any case lies first with the state’s national judicial systems." [Id. at 35.]

⁵⁶If the ICC Prosecutor believes that the crime committed is within the ICC’s discretion and that investigations should be initiated, the Prosecutor must seek authorization from the Pre-Trial Chamber, which is the judicial body charged with evaluating and commencing investigations. If the Pre-Trial Chamber believes there is a "reasonable basis to proceed with an investigation," and the case "appears to fall within the jurisdiction of the Court," the Prosecutor must inform the states and parties involved. "xxx [A] state, whether or not a member of the ICC, can exercise complementarity by informing the Court within one month of notification by the Prosecutor, that it chooses to investigate the case and, if sufficient evidence exists, to prosecute through its own national criminal justice systems. Under the Rome Statute, the Prosecutor must defer to the state’s request to investigate and prosecute at that national level unless the Pre-Trial Chamber determines that the state is unable or unwilling to exercise jurisdiction effectively and decides to authorize the Prosecutor to investigate the claim. [Id. at 24-25, citing the Rome Statute, Articles 15(4), 18(1-3) and 19.]

⁵⁷ Id. at 16.

⁵⁸ Id. at 53.

⁵⁹ Id. at 11.

As of May 2005, the U.S. Administration has signed bilateral agreements with 100 countries, 42 of which are states parties to the Rome Statute, in which they pledged not to turn American citizens over to the Court. [Id. at 13 and 53.]

⁶⁰ Id. at 54.

⁶¹ Id., citing AMICC, "Bilateral Immunity Agreements," available at http://www.amicc.org/usinfo/ administration_policy_BIAs.html.

⁶² Id., citing Global Security, "Status of Forces Agreements," available at http://www.globalsecurity. org/military/facility/sofa.htm.

SOFAs define the legal status of U.S. personnel and property in the territory of another country. Their purpose is to set forth rights and responsibilities between the U.S. and the host country on such matters as civil and criminal jurisdiction, the wearing of the uniform, the carrying of arms, tax and customs relief, entry and exit of personnel and property, and resolving damage claims. [Global Security, "Status of Forces Agreements," id.; last visited on 11 August 2010.]

⁶³ David Scheffer, "Article 98(2) of the Rome Statute: America’s Original Intent," pp. 344-345; available at http://jicj.oxfordjournals.org/cgi/reprint/3/2/333; last visited on 6 August 2010.

⁶⁴ The administration of former U.S. President George W. Bush.

⁶⁵ David Scheffer, "Article 98(2) of the Rome Statute: America’s Original Intent," supra note 63, pp. 344-345; citing "Proposed Text of Article 98 Agreements with the United States," July 2002, available at http://www.iccnow.org/documents/otherissues/impunityart98/USArticle98Agreement/ Aug02.pdf; and L. Bloomfield,"The U.S. Government and the International Criminal Court," Remarks to the Parliamentarians for Global Action, Consultative Assembly of Parliamentarians for the International criminal Court and the Rule of Law, New York, 12 September 2003, available at http://www.amicc.org/docs/ Bolton11_3_03.pdf.

⁶⁶ Victoria K. Holt and Elisabeth W. Dallas, "On Trial: The US Military and the International Criminal Court," The Henry L. Stimson Center, Report No. 55, supra note 11, citing the Stimson Workshop.

⁶⁷ AMICC, "Bilateral Immunity Agreements," supra note 61; last visited on 11 August 2010.

⁶⁸ The determination would be done by the ICC’s Chambers comprised of 18 judges. [Victoria K. Holt and Elisabeth W. Dallas, "On Trial: The US Military and the International Criminal Court," The Henry L. Stimson Center, Report No. 55; supra note 11, pp. 54 and 22; see also note 14.]

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